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Criminal Procedure
Temple University School of Law
Epps, JoAnne A.

CRIMINAL PROCEDURE
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, 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.
FOURTEENTH AMENDMENT
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
SEARCH AND SEIZURE: 4th Amendment, 14th Amendment
The Exclusionary Rule: Exclusion of illegally obtained evidence in a trial.
WOLF v. COLORADO (Justice Frankfurter) Bad LAW: The 14th does not require states to exclude illegally obtained evidence like the feds. The 4th is incorporated into the 14th – so the states are held to the 4th by the 14th.
·         The E Rule is a judicially created procedural remedy, and not a right in and of itself.
·         Dissent: Murphy & Rutledge: But for exclusion there is no sanction for illegal searches.
MAPP v. OHIO (1961) Applies the E Rule to the states as a matter of due process.
·         To deter police misbehavior – this ends up being the only one that sticks in future cases (see exceptions)
·         Judicial Integrity: the D could be getting victimized all over again in court. The court forgets about this.
·         There is a right to privacy implied by the 4th & it applies to states. The 4th = empty promise without the E Rule.
·         Dissent: Harlan, Frankfurter, Whittaker: Wolf still holds because many states use it anyways. States à criminal
The Exclusionary Rule DOES NOT apply: Seems to be only when there will be no deterrent effect. Judicial integrity?
Grand juries: U.S. v. Calandra (1974): A grand jury witness may not refuse to answer questions on the ground that they are based on evidence obtained from him in an earlier unlawful search.
·         It is not realistic to assume that exclusion of evidence in grand jury proceedings will have a deterrent effect. 
Parole: PA Board of Probation and Parole v. Scott (1998): Where the D is a parolee
Civil Deport: I.N.S v. Lopez-Mendoza (1984): E Rule doesn’t apply to civil deport hearings
Private Searches: Burdeau v McDowell (1921): The E rule doesn’t apply where a private party engaged in an illegal search unless individuals are acting as instruments or agents of the G.
·         United States v Jacobsen (1984): it doesn’t even apply when private parties have searched first and the officers have to search second. Here, FedEx employees found drugs in a package and called police. When police came they had wrapped it back up, the Court says that the police can still search. He made it available for inspection by going through Fed Ex so the agent could view it. 
Arizona v Evans: you can’t use the rule when a non police officer employee makes a mistake. Officer arrests someone he pulls over on the warrant that the court clerk didn’t take it out. 
·         In this case, you can’t because there is no deterrent effect.
THE FRUIT OF THE POISONOUS TREE – Assess in light of the Court’s deterrence rationale
HISTORY: Is the derivative evidence “tainted” by the prior constitutional or other violation?
Silverthrone Lumber Co. v. United States (1920): Held that the G could not use information obtained during an illegal search to subpoena the very documents illegally viewed. 
·         The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. 
EXCLUSIONARY RULE
UNITED STATES v. LEON (U.S. 1984) White Should the E rule apply when there is good faith reliance on the W, but it has no PC? The 4th amendment is substantive, not procedural – so the E Rule is not a right within itself.
·         IT is applied to cases where the rationale is police deterrence only – IF the justification is deterrence then the rule makes sense in cases where its use would serve the goal of deterrence. 
o        In deciding this – you have to balance the costs and the benefits. In TERRY the balancing act was introduced. In some regards there wouldn’t have been Leon if there wouldn’t have been Terry. Weigh the costs and benefits of preventing the use in the prosecution’s case in chief of inherently trustworthy tangible evidence obtained in reliance on a search W issued by a detached and neutral magistrate.  
o        In thinking about the 4th amendment and law – there will often be a small footnote or some dicta which in and of itself is not that notable but later becomes the law.
·         Deterrence only – unlawful
Post Leon – Good Faith Exception
·         Federal courts – bound by Leon – The SC decides that the constitutional line on this topic is defined by Leon where the error is the magistrate’s.
·         State courts – not bound if they have a constitution that is opposite. To interpret the 4th amendment they have to interpret it under what the SC told us. And can give more rights than Leon prescribed. Under these circumstances our statute still requires suppression. 
IF they overruled Mapp, then we could accept it, but this thing required by the C – not so much
She also doesn’t like Leon because Mapp justified the Exclusionary Rule with 2 purposes: Forward and backward (deterrence and judicial integrity) Leon sees only one purpose – Deterrence
M.A. v. SHEPPARD (US 1984) Officer gets a warrant for a homicide but can only find a form for drugs. Judge tells him he’ll make changes to make it right. Judge didn’t change where it said you could only look for drugs and related items.
·         Court said it’s like LEON because the officer acted in reasonable reliance and he doesn’t have to distrust judge.
GROH v. RAMIERZ (US 2004) The executing officer did not include the things that were to be seized on the actual warrant but they were on the application. Court said that this was NOT OK under Leon because by looking at it you knew that it wasn’t valid. Also, it was the officer who made the mistake, not the magistrate so he wasn’t reasonably relying.
4Exceptions to Leon Good Faith
Suppression remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except of his reckless disregard of the truth. The exception will not apply in cases where the issuing magistrate wholly abandoned his judicial role because no reasonably trained officer would rely on such a warrant.
Also were the police is relying on a affidavit so lacking in indicia of PC as to render official belief in its existence entirely unreasonable. 
A warrant may be so facially deficient in failing to particularize the place to be searched or the things to be seized that the executing officers cannot reasonably presume it to be valid.
WHAT IS PROTECTED? PROTECTED AREAS AND INTERESTS
1. Was it a search? Was there a reasonable expectation of privacy?
2. Was the search lawful? Was there a warrant or PC? Does it fall into one of the warrant exceptions?
3. Was it a government agent? 
KATZ v. THE UNITED STATES (1967) Guy gives wager information over phone; listening device outside the phone booth. 
·         The police conduct here is a search and seizure via extra special technology. The 4th protects people, not places.
·         Majority: He justifiably relied on his right to privacy in the phone booth (normative –what people ought to do)
·         Where there is a reasonable expectation of privacy even in places that are exposed to the public, there is protection. The majority says that what you intend to keep private is important. What a person knowingly exposes to the public is not protected. 
·         CONCUR HARLAN: there must a subjective desire to be private which should be reasonable. If one knows they are being tapped then you can’t say you have “reasonable expectation of privacy.” (empirical – based on evidence of what people actually do)
California v. Greenwood Looking in trash on the street is not a search and seizure because it is exposed to the public.
·         This is a reasonable search – a cop can’t be expected overt his eyes from evidence that can be seen by the public.
·         DISSENT (Brennan): waste = privacy
What is a search? California v. Ciraolo NO warrant before conducting surveillance of the Ds fenced backyard by a private plane
·         Anything flying in public airspace who glanced down could have seen everything that the officers observed. 
CURTILAGE & ”OPEN FIELDS”
OLIVER v. UNITED STATES – 4TH protection is not extended to open fields. Open fields is not a setting for intimate activities that the 4th is intended to protect. 
·         DISSENT (Marshall): Private land with no trespass signs should be protected by the 4th.
UNITEDS STATES v. DUNN
·         Curtilage questions should be resolved with particular reference to

d.
CALIFORNIA v. HODARI (Scalia): H flees police and is pursued on foot. He tosses out crack and the police find it.
·         A seizure occurs when the officer by means of physical force or show of authority has in some way restrained the liberty of a citizen. We need touching or submission. 
·         RULE:   police attempting to seize someone does not indicate a seizure for 4th amendment purposes.
·         DISSENT: IF police had tackled him before drugs. An attempt to make a non C seizure is okay by majority.
What can you seize? FICE (fruits, instrumentalities, contraband, evidence)
Why do we have 2 different standards for defining seizure (Bostick and Hodari)? This is due to facts. The facts of H do not lend themselves to the question in B (Does a person feel free to dismiss inquiries – H ran away)
·         First you have to ask if it a search or seizure to begin with, then ask if it falls within the 4th amendment. 
PROBABLE CAUSE – Is there enough reason to issue the warrant? What are the standards? How is it defined?
PC for arrest: a substantial probability that a crime has been committed and that the person to be arrested committed it. PC for search: a substantial probability that certain items are the FICE of a crime and that these items are presently to be found at a certain place.
SPINELLI v. UNITED STATES (Harlan) – How can the G figure out what PC is? – jurisdictional; some states use.
·         S convicted of travelling w/intent to gamble. FBI = anonymous tip; corroborated with FBI investigation. 
·         PC = 2 prongs: (1) Reliability of information – can be met with lots of detail (2) Veracity – Is the informant credible- corroboration satisfies? Hard to prove in anonymous tip cases. 
·         There was no PC in this case because the affidavit was conclusory and simply stated that both prongs were met.
·         Why SPINELLI in light of GATES? Some states still use this more stringent standard for PC.
ILLINOIS v. GATES (Rehnquist) – Constitutional limit of PC – How can the G figure out what PC is?
·         The police receive a written anonymous tip that says the Gates are drug dealers. They follow them on their travels and things go down like the tipper says. The get a warrant to search car and home.
·         Moves to a totality of the circumstances approach to PC. The 2 prongs are still used in the analysis but not as rigidly. The more details the better in totality of the circumstances approach.
·         The reviewing court will always give deference to the magistrate so there is a presumption that the magistrate did find PC. Reviewing court: M had “substantial basis for concluding that probable cause existed”
o        IT is not fair to ask police officers and non legal professionals to apply the 2 prongs due to legal issues.
o        It is easier to est. PC so the officers won’t be tempted to engage in illegal S and S and ask for consent.
o        Things that are conclusory (i.e: there is credible and reliable info) do not est. PC.
·         Seemingly innocent activity became suspicious in light of the initial tip. It is OK if ALL stuff = innocent.
·         DISSENT (Breannan) – Spinelli should be upheld and warrant failed that test
·         DISSENT (Stevens) – totality of circumstances rule should be used and the warrant failed.
Massachusetts v. Upton (U.S 1984): search warrant for a motel room that had id’s belonging to recent robbery victims. Then he got a phone call. Although the caller didn’t I.D. herself, he knew it was the guy’s girlfriend. She told him that there were stolen goods in her boyfriend’s house. Court ruled that in light of Gates there was a substantial basis for the issuance of the warrant. Apply Totality of the Circumstances.