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Criminal Procedure
University of Dayton School of Law
Schmitt, Jeffrey

4th amendment analysis
What matters is how the govt gets the information
I. What is a search?
Brown v. Mississippi
The Fourteenth Amendment Due Process Clause is violated when a confession obtained via physical torture is used to convict a defendant.
Duncan v. Louisiana
The 14th amendment guarantees a right to a trial by jury in all criminal cases, if tried in a federal court, would come within the 6th amendments guarantee
Today- 1st, 2nd, 4th, 5th, 6th, 8th- incorporated, all except grand jury indictment, and jury trial in civil cases
U.S v. Verdugo-Urquidez
A search or seizure of property located in a foreign country, which is owned by a nonresident who is only briefly on U.S. soil, is not covered by the 4th amendment, even if U.S. law enforcement agents conduct the search.
RMR THAT WHEN Private party performing unreasonable search and seizure- no 4th amendment issue!
Weeks v. United States
The U.S marshal acted without sanction of law, the seizure of the private papers was in direct violation of the constitution (mail fraud, lottery tickets)
Wolf v. Colorado- Ex. Rule does not apply to states, but by in large 4th applies
Rule of Law- It is a violation of the Due Process Clause of the Fourteenth Amendment for state actors to gather evidence through unreasonable searches and seizures, but such evidence need not be excluded from state criminal proceedings.
2 rationales protected- constitutional and judicial integrity
Mapp v. Ohio- exclusionary rule now binding to all states (overrules Wolf)
All evidence obtained by searches and seizures in violation of the Constitution, is inadmissible in state court.
What is a search?
Interests protected- persons, houses, papers, and effects
A police officer may act as arbitrarily/unreasonably as he/she wants, as long as no “search and seizure” is not unreasonable
Search used to be a property focused inquiry
Boyd v. U.S – every invasion of private property = trespass
This approach mean that there was no violation to 4th in absence of trespass to private property
Katz v. United States- phonebooth case (talking in phone booth)
Rule of Law
The Fourth Amendment prohibition against unreasonable searches and seizures of physical items extends to recordings of oral statements.
No physicial invasion req to violate 4th, wire-taping public phone booth = search and seizure under 4th amendment
Search = subjective expectation of privacy, did not knowingly expose himself to the public
Justice Harlan – Concurring
4th protects a person from unreasonable searches and seizures when he or she has a subjective expectation of privacy that society deems as reasonable.
2 prong expectation test
expectation of of privacy (subjective)
reasonable expectation of privacy by society (objective)
United States v. White- What does privacy mean? (confessing to an undercover cop= no REP) (talking to the govt)
Katz decision does not alter this rule
Unlike Katz, D assumed risk when they confided in others about illegal activities (there, he was in a telephone booth) (reasonable person knows someone/friend may snitch)
Electronic surveillance that allows agents to listen in real time is admissible provided the agent is not otherwise violating the defendant’s reasonable expectations of privacy. 
Not a search when D speaks to a govt agent informant freely (no REP)
Smith v. Maryland- still good law
– Court says pen register = not a search, and not a 4th violation
– Diff from Katz, b/c pen registers do not acquire contents of communication
– No reasonable expectation in phone #s dialled (Miller case, banking info- not a search)
– No REP when you give this info to the public /type in phone #
I. Dogsniffing
Place case- dog sniffing at airport, not search- less invasive than typical search
Caballes case- police dog sniffing on highway, not intrusive only invasion occurs is when you have drugs
Rodriguez- police prolonged stop and dogsniff = seizure
II. Open fields
Treated like a sidewalk, even with no trespass signs (doesn’t matter)
Oliver case- not a search, text of the 4th does not apply to open fields
Definition of house under 4th= actual 4 walled structure with curtilage
If visible from open field, no REP, no search

es- gambling activities, anonymous tip by itself= not enough to est. PC and for warrant
2 prong test from Aguilar
set forth underlying circumstances needed for judge to judge validity of conclusions
est informant as credible and reliable
tip = fundamental to warrant application to create reliability
basis of knowledge and veracity/reliability
past informing is not the most significant way to show reliabiltiy
need more than an affidavit saying cop knows info, need to see if witness is credible (Aguilar v. Texas)
United States v. Karo
beeper within container of ether, consent from the  informant , the transfer to the defendant= no seizure
a seizure only occurs when there is some meaningful interference with an individual’s possessory interests in that property
IL v. Gates- FL trafficking couple- changes Spinnelli, overrules- TOC analysis
future actions iwthin the anonymous tip and great detail = enough PC to est warrant, it est. substantial basis to determine that the search will uncover evidence of actual wrongdoing.
2 prong factors of Aguilar, just supplemental, not replacing with totality of circumstances
Totality of the Circumstances
What is in the tip? Basis of knowledge, reliability, weight of tip, details
Tip itself not enough probable cause
Corrobration- any problems with tip? Reliability/basis of knowledge?
Other details (Gates)
Totality of circumstances- 1+2+3= PC?
Peyton v. New York- PC, no consent to come in- need a warrant
A warrantless seizure in public/plain view= okay
Searches in a home an be done when arresting a person
Absent exigent urgent circumstances police not not enter a person’s home to make a arrest without a warrant
Disent- this hinders law enforcement, 4th was concealment with people not places, etc