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Criminal Procedure
University of Denver School of Law
Kamin, Sam

Criminal Procedure
Spring 2011
I. 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,(reasonableness clause) 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.(Warrant requirement)
A.      “Persons, houses, papers, and effects”
·         Katz v. US pg. 17
o   Facts: Gov’t put wiretap on public phone booth
o   Holding: The 4th Amend. governs not only the seizure of tangible items, but extends as well to the recording of oral statements overheard without any “technical trespass under local property law.
o   The Gov’ts activities in electronically listening to and recording the petitioner’s words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a ”search and seizure” within the meaning of the 4th.
§  The fact that the electronic device employed to achieve that end did not happen to penetrate the wall of the booth can have no constitutional significance
o   Katz Test- two-fold requirement- Reasonable Expectation of Privacy
I.                    Did that person exhibit an actual expectation of privacy?(subjective)
II.                  Is that expectation one that society is prepared to recognize as “reasonable”?
·         Oliver v. US pg. 31- Open Fields Doctrine
o   Fact- Police officers found a marijuana field growing about a mile away from an individual’s home.
o   Rule- “[A]n individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home.”
o   This was not a ‘Search’ because it was not of a person, place, paper, or effect, and so does not invoke the 4th Amendment
o   The correct inquiry is whether the government’s intrusion infringes upon the personal and societal values protected by the Fourth Amendment. As we have explained, we find no basis for concluding that a police inspection of open fields accomplishes such an infringement.” “Nor is the government’s intrusion upon an open field a ’search’ in the constitutional sense because that intrusion is a trespass at common law.”
B.      “Searches”
·         Whether or not  the government’s conduct has impinged on a reasonable expectation of privacy?
·         Whether privacy is invaded may depend upon whether personal information is uncovered, whether possessions are touched or moved, whether information from inside a home or location is discovered, or whether intrusive means were used to obtain information.
1.                  Informant’s
a.       US v. White pg. 43
                                                                           i.      Facts: A government informant, Harvey Jackson, wore a concealed radio transmitter and engaged in four conversations with defendant White at three different locations: Jackson's house, a restaurant, and Jackson's automobile.
                                                                         ii.      Holding: The testimony of government agents, relating conversations between a defendant and an undercover informant, overheard via electronic surveillance, is admissible, despite the informant's unavailability at trial
                                                                       iii.      If the conduct and revelations of an agent operating without electronic equipment do not invade the defendant’s constitutionally justifiable expectations of privacy, neither does a simultaneous recording of the same conversations made by the agent or by others from transmissions received from the agent to whom the defendant is talking and whose trustworthiness the defendant necessarily risks.
2.                  Bank Statements
a.       US v. Miller pg. 53  
                                                 i.    The gov’t can access bank records, because the bank is not the private party, and there is no reasonable expectation of secrecy when you do business with a bank. You assume the risk when you use the bank.
                                                                         ii.      The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government.
                                                                       iii.      The Court has repeatedly held that the 4th Amend. does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.
                                                                       iv.      No 4th Amend. interests of the depositor are implicated here
3.                  Garbage Case
a.       California v. Greenwood pg. 61
                                                                           i.      Facts: Local police suspected Billy Greenwood was dealing drugs from his residence. Because the police did not have enough evidence for a warrant to search his home, they searched the garbage bags Greenwood had left at the curb for pickup. The police uncovered evidence of drug use, which was then used to obtain a warrant to search the house
                                                                         ii.      Holding: Court held that garbage placed at the curbside is unprotected by the Fourth Amendment. The Court argued that there was no reasonable expectation of privacy for trash on public streets “readily accessible to animals, children, scavengers, snoops, and other members of the public.” And they placed their garbage on the curb with the express purpose of conveying it to a 3rd party, the garbage men.
                                                                       iii.      The Court also noted that the police cannot be expected to ignore criminal activity that can be observed by “any member of the public.”
4.                  Aerial Observations
a.       Dow Chemicals v. US pg. 70
                                                                           i.      Facts: Dow Chemical Company denied the Environmental Protection Agency a follow-up on-site inspection of its facilities in Midland, Michigan. In response, EPA conducted an unannounced aerial inspection. When Dow became aware EPA had taken aerial photographs of its facilities, it filed suit
                                                                         ii.      Holding: Fourth Amendment protection involves the invasion of areas where intimate activities occur, whereas “the open areas of an industrial complex are more comparable to an 'open field' in which an individual may not legitimately demand privacy.” The fact that EPA could take aerial photographs of the facilities from public airspace with the standard photographic equipment employed by mapmakers confirmed that the area was not subject to strict protection from observation.
                                                                       iii.      The Government has “greater latitude to conduct warrantless inspections  of commercial property” because “the expectations of privacy that the owner of commercial property enjoys in such property differs significantly from the sanctity accorded an individual’s home
b.      Florida v. Riley pg. 80
                                                                           i.      Facts: Police received an anonymous tip that Riley was growing pot in a greenhouse, but could not see in the greenhouse from the street view. However, upon flying 400 feet in a helicopter he was able to observe the greenhouse from the naked eye. A warrant was obtained based on this information
                                                                         ii.      Holding: A fenced yard is within the curtilage of the house, and the occupant does have a subjective expectation of privacy. However, that expectation is not reasonable and one that society is prepared to honor. Because the home and its curtilage are not necessarily protected from inspection that involves no physical invasion.
                                                                       iii.      The Fourth Amendment simply does not require the police traveling in the public airways at this altitude to obtain a warrant in order to observe what is visible to the naked eye
                                                                       iv.      We would have a different case if flying at that altitude had been contrary to law or regulation. But helicopters ware not bound by the lower limits of

hen they saw police approach, scattered. Hodari meanwhile had emerged from a back alley and an officer tackled him to the ground. During the tackle he appeared to have tossed a small rock on the ground, later identified to be cocaine. Hodari was found to be carrying 130 in cash and a pager along with the cocaine.
ii.       Holding: “Mendenhall test”, which stated that “A person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not fee to leave
iii.     Mendenhall test establishes that the existence of a ‘show of authority’ is an objective one: not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer’s words and actions would have conveyed that to a reasonable person”
iv.     Hodari should have just stood there and let them frisk him, then if they found the crack, it would be an illegal seizure because they did not have reasonable suspicion, and then the frisking would have been an illegal search and the drugs would have been the “fruit of an illegal search” and inadmissible
v.       You are Seized when you reasonably believe you are not free to leave or there is an actual seizure or acquiescence
                                             b.      US v. Drayton pg. 113
i.         Facts: Greyhound Bus case.
ii.       Holding: The proper inquiry “is whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.”
iii.      the Court held that the Fourth Amendment does not require police officers to advise bus passengers of their right not to cooperate and to refuse consent to searches.
iv.     The Court reasoned that, although the officer did not inform the defendants of their right to refuse the search, he did request permission to search and gave no indication consent was required.
v.       Moreover, the Court noted, the totality of the circumstances indicated that the consent was voluntary to both the seizure and the search.
a.       There was no application of forces, no intimidating movement, no overwhelming show of force, no brandishing of weapons, no blocking of exits, no threat, no command, not even an authoritative tone of voice
                                              c.      Brendlin v. California pg. 121
i.         Facts: Police stopped Karen Simeroth's car for having expired registration tabs. Bruce Brendlin, who had a warrant out for his arrest, was riding in the passenger seat. Police found methamphetamine, marijuana, and drug paraphernalia in the car and on Simeroth's person.
ii.       Holding: the Court held that when a vehicle is stopped at a traffic stop, the passenger as well as the driver is seized within the meaning of the Fourth Amendment
iii.     The Court held that Brendlin would have reasonably believed himself to be intentionally detained and subject to the authority of the police. Thus, he was justified in asserting his Fourth Amendment protection against unreasonable seizure.
iv.     The police had no reasonable suspicion.
v.       It doesn’t matter if the police intend to seize, it only matters if the person reasonably believed they were being detained
a.       The intent that counts under the 4th Amend. is the intent that has been conveyed to the person confronted,” and the criterion of willful restriction on freedom of movement is no invitation to look to subjective intent when determining who is seized.