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Criminal Procedure
University of Denver School of Law
Farrell, Ian P.

Criminal Procedure Outline: Farrell Fall 2013
I.      Fourth Amendment: Application to Arrest, Searches, Seizure
“The right of a 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 on probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
A.   Does the Fourth Amendment Apply?
              1.    The Fourth Amendment applies only to governmental, not private, conduct (Jacobsen); AND *
i.      Example
a.    Agent of federal, state, or local government.
b.    Private party acting at the direction of government (Jacobsen).
                                            1.    Two factors to consider in determining whether private party is acting as instrument of state:
i.      The degree of government encouragement/knowledge.
ii.     The purpose underlying the private party’s action.
a.    Pursuing government interest such as discovering criminal activity.
b.    Pursuing own interest such as protecting against claims/liability.
              2.    Either a physical intrusion of a person, house, paper, or effect (Olmstead*, Jones); OR violation of a reasonable expectation of privacy (Katz*, Jones). *
i.      Under reasonable expectation of privacy:
a.    Citizen has manifested a subjective expectation of privacy; and
b.    That expectation is one that society accepts as objectively reasonable (Greenwood).
B.   Fourth Amendment: Defining Searches
              1.    Location Searched
Setting is of great importance in determining whether the Fourth Amendment applies. Where police observations are made from a location to which the public has lawful access, the viewing of otherwise protected area may not implicate the Fourth Amendment.
i.      Home****
a.    Individual has a reasonable expectation of privacy in their home (Payton).
b.    Searches and seizures inside a home without a warrant are presumptively unreasonable (Payton).
c.    The very core of the 4th stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion. (Payton*, Silverman).
d.    A police officer may approach a home and knock, precisely because that is no more than any private citizen might do (Jardines*, King).
e.    It is reasonable for police to refuse to allow suspect to enter his home when they had probable cause to believe there was contraband inside and that the suspect could have destroyed it if allowed to enter home (McArthur).
ii.     Search Of Home****
a.    Search Warrant Requirement
                                            1.    Search warrant is issued upon a showing of PC to believe that the legitimate object of a search is located in a particular place, and therefore safeguards an individual’s interest in the privacy of his home and possessions against the unjustified intrusion of the police (Payton).
                                            2.    Absent exigent circumstances, officers may never enter a home to arrest for a dangerous felony unless they have obtained a warrant (Payton).
                                            3.    An arrest warrant, is not adequate to protect Fourth Amendment interests of persons not named in the warrant, when their homes are searched without consent and absent exigent circumstances (Steagald).
b.    Knock and Announce Requirement
                                            1.    Police officers must knock and announce their presence before executing a warrant (Wilson).
                                            2.    Police need to give homeowner a reasonable amount of time to respond (Wilson).
                                            3.    Violation of Knock and Announce
i.      Evidence need not be excluded when police violate the “knock and announce” rule (Hudson).
                                            4.    EXCEPTIONS
i.      Police do NOT need to knock and announce if doing so would endanger them (Wilson).
ii.     Police do NOT need to knock and announce their presence if doing so would lead to the destruction of evidence (Wilson).
iii.    Police may dispense with announcement in cases where a prisoner escapes from him and retreats to his dwelling (Wilson).
iii.    House Guests
a.    An overnight guest in home has a reasonable expectation of privacy (Carter*, Olson).
b.    Short-term use of the home (several hours) with the permission of the owner does not give rise to a reasonable expectation of privacy, at least when the home is being used for an illegal business purpose (Carter).
                                            1.    Factors to Consider For Short-Term Guests
i.      Commercial nature of transaction
ii.     Period of time (day vs. two hours)
iii.    Prior relationship b/w ∆ and resident
iv.   Curtilage
a.    Reasonable expectation of privacy in the area immediately surrounding and associated with the home (Oliver).
b.    This area around the home is intimately linked to the home, both physically and psychologically, and is where privacy expectations are most heightened (Jardines*, Cira

car came into the defendant’s possession; defendant Jones, on the other hand, owned the vehicle in question at the time the government installed the GPS’s device.
vi.   Officer’s Sense of Smell
a.    A police officer may rely on his own sense of smell is ascertaining the presence of illegal drugs or alcohol (Sharpe).
vii.    Drug Sniffing Dog
a.    Use of a trained dog to sniff for the presence of drugs is search if it involves a physical intrusion onto property (home) (Jardines).
b.    In the absence of a physical intrusion, the use of drug-sniffing dog does not violate a reasonable expectation of privacy (luggage) (Jacobsen*, Place).
c.    In the absence of a physical intrusion, the use of drug-sniffing dog does not violate a reasonable expectation of privacy (car) (Harris).
                          3.    Public Exposure and Assumption of Risk
i.      Third Party Exposure – Informants
a.    No reasonable expectation of privacy when one conveys information to a third party, even in apparently private communications (White).
ii.     Assumption of Risk Doctrine
a.    No reasonable expectation of privacy in what a person knowingly exposes to the public, even in his home or office. (Katz).
b.    No reasonable expectation of privacy in garbage (Greenwood).
c.    No reasonable expectation of privacy in bank accounts (Miller).
d.    No reasonable expectation of privacy in numbers dialed (Greenwood*, Smith).
e.    No reasonable expectation of privacy in what could be seen from flying overhead (Greenwood*, Ciraolo).
C.    Seizure of Person- Arrest
              1.    Defining Seizure
i.      Totality of Circumstances (Drayton)
a.    A person is seized (arrested) by the police when:
                                            1.    Physical force has been applied;
                                            2.    When a person submits to the assertion of authority. (Hodari); or
                                            3.    If a reasonable person would not feel free to terminate encounter with police officer (Drayton).