Con Crim Pro
Grossman
Spring12
I. Network Surveillance
People have an expectation of privacy in their computer and its contents
· When you hook up to a network, in theory you maintain this expectation of privacy
Summaries:
· Accessing a network doesn’t get rid of privacy expectations nor does ppl have occasional access to the computer (surveillance = “search”)
– BUT, privacy expectations may be reduced if the user told the info transmitted through the network is not confidential and that the systems administrator may monitor communications transmitted by the user
– With reduced privacy expectations, the surveillance does not constitute a “search
– Rememberà must be a gov’t actor who accesses the information to constitute a “search” under the Fourth Amend. (so if it’s a private company that doesn’t give these warning messages, their surveillance will not be a 4th Amend. Violation)
Bad Law todayà Olmstead PRE KATZ
· Held that wiretapping did not constitute a Fourth Amend. “search”
– Nothing “tangible” to be intercepted with the gov’t intercepts words
– Since there is nothing tangible, the 4th Amend. doesn’t apply (obviously bad law)
Brandeis Dissentà Foreshadows what happen in Katz where the focus changed on privacy and not the tangibility of the item (so “words” can be intruded upon through invasions of privacy)
Grossman: 4th Amend. is basically “the right to be left alone” and whenever the gov’t intrudes on this right it implicates the 4th Amend.
Cont. Summaries:
· Berger: Court invalidated NY state wiretapping law on the grounds that it did not provide sufficient Fourth Amend. safeguards. Constitutionally inadequate for numerous reasons: [Need to be specific ie saying investigating criminal activity not enough, they were given too much time 60 days like a repeated search, could get a renewal order on same basis, no limitations on how long you listened]
à Court basically reaffirmed that Katz (Overrules Olmstead)makes clear that words are protected under the 4th Amend. and overturns Olmstead
– “Search” occurs anywhere someone has a reasonable expectation of privacy
à So after Berger and Katz the warrantless interception of telephone calls will be considered a “search” that violates the Fourth Amend. absent special circumstances such as consent to monitoring
Federal Wiretap Act of 1968 (Title III)
Congress was concerned about the Berger holding and wanted to pass a statute which would provide more leeway for government wiretapping
– Created a system under which the Federal gov’t could wiretap and intercept confidential communications
– But, Title III provides greater protection to citizens than is required by the 4th Amend.
– Requires states to have their own protections which provide at least as much protection as Title III
When does it apply:
– Applies to nonconsensual recordings or interceptions of private oral conversations
– Only applies when there are two individuals communicating, neither of which consent to the recording or interception
– Applies only to oral conversations. If it’s just a video recording it will not implicate Title III
If the conversation is between a citizen and the government, they may record the conversations and Title III will not apply
– Gov’t would be “consenting” to the communication (not protected by Title III or the 4th Amend.)
– Under Title III, only 1 party to the convo must consent for the wiretap to be lawful (not in MD)
MD provides greater protection than Title III
– In MD, both people have to consent for the wiretap to be lawful
– Ex: When Linda Tripp tape recorded Monica Lewinsky and didn’t tell her about it, it makes the MD version of Title III apply
How does the Government Comply with Title III?
– Once Title III applies, the authorities must obtain a wiretap order before using a wiretap
– Must submit an Application and the Order Itself
Application: Similar to an affidavit for a warrant. Gov’t lays out all the probable cause they have
– Must detail the nature of the crime
– Must detail the identity of the targeted party
– Must detail the facility to be taped (“Conversation of John Smith’s phone at 123 North Ave.”)
– Must detail the type of communication sough
– Must be a statement which says the following: “No other reasonable means of investigation would produce the same result”
– Gov’t must exhaust all other means, or at least show that other means would not be effective
Order Itself: Similar to a warrant.
– Must be a termination date included in the warrant
– Must say that police will stop listening as soon as the targeted convo. is heard (or at most, 30 days)
– If police want to listen again, a new order can be granted. However, police must make a new showing of probable cause and show that it is current (eliminates staleness issue)
– Must say that only “relevant” conversations will be intercepted (must be very detailed)
– To determine what is “relevant” the courts look to “reasonableness.” Will look at all the facts to determine reasonableness. “Totality of the circumstances”
– Ex: Call from Columbia. Gov’t has a wiretap order and is listening. Caller immediately asks “How’s the family” and starts talking about the World Cup. Gov’t would likely be able to listen more since the call is coming from Columbia (call from Columbia raises suspicion)
à After the investigation is over, the gov’t must notify the party and tell them they’ve been listening (but there are exceptions)
Once the gov’t has a valid Wiretap Order, they can pretty much listen to anything and any evidence of criminal activity will be admissible under the “plain view rule”
– Even if a conversation starts out innocent, if the police is listening in and heards evidence of criminal activity in “plain sound” then it will be admissible
Wiretap Orders Not Necessary: G
lso in handout)
1) Classic Coercion (5th Amend.):
– Ask “was the D’s will overborne either through physical or psychological means?”
– Covers physical as well as psychological pressure – “The Third Degree”
– As long as it “overbears D’s will” then it is deemed to be classic coercion
– 5th Amend. directly protects against this classic type of self-incrimination
2) Miranda (5th Amend.)
Was there custody?
Was there interrogation?
If yes to A & B, were the warnings administered adequately?
Was there a valid waiver by D?
– If no valid waiver, then the statements are inadmissible
If D invoked his Miranda rights, what happened next?
– If D’s rights aren’t respected by police, any statement will be inadmissible
3) 6th Amend. Right to Counsel
– Applies only in criminal prosecutions, so we first must determine when the prosecution starts
– Usually considered indictment or arraignment
Has D been indicted or arraigned (i.e. Is D in “6th Amend. country?”)
If yes, did the police deliberately elicit a statement from him without attorney present?
Were the warnings adequately administered?
Was there a valid waiver by D?
– If no valid waiver, then the statements are inadmissible
If D invoked his Right to Counsel, what happened next?
– If D’s right isn’t respected by police, any statement will be inadmissible
4) 4th Amend. Right to be Free from Unreasonable Search and Seizure
A. Was there a seizure? If so, what level of seizure?
– If it rises to the level of full blown seizure, police need probable cause
B. Do police have probable cause or a probable cause substitute?
C. Did police have a warrant or a warrant exception
D. Did the illegal seizure lead to the statement made by D?
– If so, then there might be a 4th Amend. violation which will keep the statement out
Summary:
· Police held D til confession; didn’t go to judge to determine if there was PC; delay violated fed rules (outside constitution; so doesn’t apply to states), but doesn’t say what to do with confessionà court interprets and says: if it is violated and a statement is obtained as a result of that violation, the statement is inadmissible; some states adopted not MD (uses totality of circumstancesà aka not taking to judge would just be a factor to determine admissibility)
