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Criminal Procedure
Temple University School of Law
Shellenberger, James A.

ARREST, SEARCH & SEIZURE (4th Am)

· Analysis

o Does the 4th/14th am apply?

§ Was there a search and/or seizure? Was there a governmental intrusion on privacy, liberty, or possession on the particular person challenging that action? (includes standing)

ú Search

· Standard-Katz test, TOC factors

ú Seizure-would a RP in the situation believe they were free to leave

o What protections do they require? (was is a reasonable s & s)

§ Justified at inception

ú Probable cause

ú Search warrants

· K & A

ú Arrest warrants

ú Exceptions to warrants

· Search incident to arrest

· Vehicle search

· Consent

· Stop and frisk

· Inventory

· Exigent circumstances

§ Reasonably related in scope to what is justified?

o Were those protections violated?

o If there was a violation, what is the remedy?

§ Exclusion

ú Good faith exception

§ Fruit

ú Inevitable discovery

ú Attenuation

ú Independent source

· 4th Amendment

o “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.”

· Protected Areas & Interests

o Search-Intrusion of Privacy Interests

§ Standards

ú Katz Test: the 4th am applies if there is a governmental intrusion:

· That interferes w/ a person’s “reasonable expectation of privacy” and (sub)

· That society is ready to accept as reasonable (obj)

ú Legitimate expectation of privacy

· Applied to contraband [Jacobsen][Place]

· Open fields [Oliver]

§ Factors (TOC):

ú Whether instrument common to public [Kyllo]

ú Whether public could observe legally [Riley]

· Natural senses

· Common means of enhancement

· Trash-society won’t recognize as reasonable [Greenwood]

ú What the person has done to protect privacy

· Voluntarily conveying to third party (trash) [Greenwood]

· Knowingly expose to public

ú Nature of information obtained

· Intimate details [Kyllo]

· No legitimate interest in contraband

ú Location

· Home v. public

o Trash left on curb in public [Greenwood]

· Curtilage v. open field

· Business premises protected as well [See]

· Prison cells not protected [Hudson]

ú Nature/manner/level of intrusion

· Physical trespass

· Whether able to obtain info unknowable w/o physical intrusion [Kyllo]

· Paint chip from car not a search [Caldwell]

· Physical penetration not required [Katz/Kyllo]

§ Curtilage & Open Fields

ú Rule: there is a reasonable expectation of privacy in homes and in curtilages as an extension of the home, but not in open fields [Oliver]

ú Dunn Factors-to determine whether there is a reasonable expectation that an area immediately adjacent to the home is a curtilage:

· The proximity of the area claimed to be curtilage

· Whether the area is included within an enclosure surrounding the home

· The nature of the uses to which the area is put

· The steps taken by the resident to protect the area from observation by people passing by

§ Aerial surveillance

ú No reasonable expectation of privacy of a building observed from 400 feet bc the helicopter was flying legal altitude so any member of the public could have viewed it and such flight wasn’t rare for public [Riley]

§ Effects/Search by Touch

ú Luggage is an effect protected by the 4th Amendment and is “searched” when touched in an exploratory manner [Bond]

§ Thermal Imaging

ú Obtaining information regarding the interior of the home that couldn’t otherwise have been obtained w/o physical intrusion constitutes a search where the technology in question is not in general public use [Kyllo]

§ Dog Sniff

ú A dog sniff isn’t a

ncriminating)-anything that furnishes a link in the chain of evidence used to prosecute and convict

§ The seizure of records, and their admission into evidence at trial, doesn’t compel a defendant to testify against themselves in violation of the 5th Amendment bc they are not being compelled to do aid in discovery, production, or authentication of incriminating evidence [Andresen]

§ Searches may be made on premises of persons who are not criminal suspects, if there is PC to believe that the search will produce evidence of someone else’s crime [Stanford Daily]

· Standing

o Rule: a defendant may assert the exclusionary rule only to bar evidence obtained through violation of his own constitutional rights [Alderman]

§ Searches: a person can challenge a search only if that person had a legitimate or reasonable expectation of privacy in the particular place or area invaded or searched [Rakas]

§ Seizures: a person can challenge a seizure only if the challenged police action intruded on the liberty or possessory interests of the person challenging it [Rakas]

o Possessory interests in premises

§ One with a present possessory interest in the premises searched may challenge that search even though not present when the search was conducted [Alderman]

§ D had a legitimate expectation of privacy where he was a guest at a house and had right to exclude people from the house [Jones]

§ Business: a defendant in possession of the business premises searched has standing, and an employee of a business searched has standing if there was a demonstrated nexus between the area searched and the work space of the defendant [Mancusi]