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Criminal Procedure
University of Denver School of Law
Kamin, Sam

Warrant Preference Theory:
◦     Warrant clause modifies its reasonableness clause, thus searches are generally considered unreasonable unless authorized in advance by a warrant. Warrantless searches are only allowed in so-called “exigent” circumstances” or when “special needs” make it impossible to impracticable to obtain a warrant
Reasonableness Theory:
◦     The reasonableness clause is grammatically independent of the warrant clause. The 4th Amendment requires at bottom that all searches and seizures be reasonable, which is defined on a contextual and ad hoc basis
◦     This sometimes can be used to get around the warrant/probable cause requirement
Does the Fourth Amendment apply?
◦     State actor?
▪     Government viewing what a private party had freely made available for his inspection does not violate 4th Amendment – Jacobsen
◦     SEARCH?
▪     Katz Test:
·         Reasonable expectation of privacy? – Harlan concurrence from Katz
◦     Subjective component: Did the D's actions exhibit an actual expectation of privacy? Look for steps the individual has taken to protect from outside observers
▪     Assumption of Risk: What a person knowingly exposes to the public is not subject to Fourth Amendment protection (Katz)
·         White – Fourth Amendment offers no protection to a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it, thus government can eavesdrop on conversations between suspects and police informants who are wearing wires
·         Miller – Information contained in checks and deposit slips not protected by Fourth Amendment because it was voluntarily conveyed to a third party (the bank)
·         Greenwood – No reasonable expectation of privacy in garbage bags set out for collection by a third party…”common knowledge” that garbage is readily accessible to animals, children, scavengers, and snoops
◦     Objective component: Is the expectation reasonable? Is it one that society is prepared to recognize as reasonable?
▪     Open Fields Doctrine – Open fields are not protected by the 4th Amendment (not considered “property”, “home” or “effect”), thus police are allowed to enter and search a field without a warrant. 4th Amendment protection starts at the curtilage (area immediately surrounding) the home, but an individual may not legitimately demand privacy for activities conducted out of doors in fields – Oliver
·         Oliver factors for determining whether a search infringes upon an individuals privacy:
◦     Intention of framers
◦     Uses to which the individual has put the location
◦     Our societal understanding that certain areas deserve protection from governmental invasion
·         Counter argument: Oliver dissent says that if entry onto the land would constitute trespass under State law, then the 4th Amendment should protect that land from government entry/searches
·         Front porch is within the “curtilage” and enjoys the same protection as the home itself, thus a drug sniffing dog on a homeowner's porch is a search- Jardines
▪     Plain View
·         Jacobsen – Evidence in plain view is not protected by 4th Amendment, even if that evidence is in plain view as a result of a private party's actions and not the defendant's
·         Riley – Home and curtilage not protected from government inspection that involves no physical invasion (helicopter flying 400 feet above property and was within FAA regulations)…if police have a legal right to be where they are, anything they see from that “public vantage point” is not protected by the 4th Amendment
▪     Technology: Obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion constitutes a search – Kyllo
·         Using technology not in general public use to intrude into a protected areas is a search and thus presumptively unreasonable without a warrant – Kyllo
▪     Dogs – dogs only detect the existence of contraband, and thus the invasion of privacy is minimal and the courts have not considered drug-detecting dogs as searches
▪     Property-based approach from Jones
·         Jones held that the installation of GPS device on car was a search, based on the fact of government intrusion on private property
◦     The phrase “in their persons, houses, papers, and effects” means that 4th Amendment protection has a close connection to property and is concerned with government trespass upon certain areas (persons, houses, papers, and effects)
◦     “Katz did not narrow 4A's scope, but rather added the reasonable expectation of privacy test”
◦     Distinguishes this case from Oliver because this was an intrusion on an “effect” which was clearly prohibited by the language of the 4A, whereas Oliver was dealing with

informant, court should look at the totality of the circumstances to determine whether the tip was sufficient to constitute probable cause upon which a warrant could be issued.
·         Aguilar-Spinelli test is still persuasive and relevant, but probable cause is a fluid concept that should turn on the assessment of probabilities in the particular factual context
▪     Warrant validity
◦     Assess validity of warrant on the basis of the information that the officers disclosed, or had a duty to discover and to disclose to the issuing Magistrate…aka don't use hindsight to invalidate a warrant – Garrison
◦     Oath or affirmation
▪     Usually an affidavit attached to warrant application with written or sworn statements
▪     Circumstances giving rise to probable cause must be adequately presented to magistrate
▪     Negligent statements will not invalidate a warrant
▪     Perjured or reckless statements will not invalidate a warrant if the remaining content is still sufficient to establish probable cause
◦     Particularity – Must describe the place to be searched, and the person's or things to be seized – Groh v. Ramirez
▪     This gives notice to individual of what police officers are going to search and that the search is lawful
◦     If warrant is invalid, the search is regarded as warrantless – Groh v. Ramirez
◦     Neutral and detached magistrate
▪     Shadwick –  2 tests
·         1 – Neutral and detached? Requires severance and disengagement from activities of law enforcement
·         2 – Must be be capable of determining whether probable cause exists for the requested arrest or search (not necessary to be a judge or lawyer)
▪     McCommon – Dissent from decision to deny cert
·         Judge under oath admitted that he takes the police's word for it and considers it his duty to help police with their investigations
·         Brennan says this is clearly not neutral and detached as required by Constitution