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

 
Criminal Procedure
Farrell
Fall 2015
 
4th A Violation
·         Search
o   A search occurs when there is a physical intrusion of privacy rights or a person’s objective and subjective reasonable REP is violated. (Olmstead, Katz, Jones)
o   Examples
§  Telephone Booth
ú  There is a REP in a telephone booth. (Katz)
§  Open field
ú  Property owners have no REP in open fields, which includes land outside of the house and the curtilage. (Oliver)
§  Valid consent
ú  Voluntary
·         When there is absence of coercion determined by a totality of the circumstances. (Schneckloth v. Bustamonte)
o   Factors
§  Knowledge of a right to refuse, age, mental deficiency, education, higher sensibility to be pressured
ú  Capacity
·         The person giving consent must be authorized to do so.
·         Examples
o   Hotel employees are not authorized to give consent to search a hotel room. (Stoner)
o   Co-resident’s can give consent. Based on the property’s use, not formal property rights. Someone with common authority over the property or has a sufficient relationship can give consent. (Matlock)
o   Consent of one occupant is not valid against the objection of a present co-occupant. (Georgia v. Randolph)
o   Police can enter based on a reasonable belief that a 3rd party has authority to consent. (Rodriguez)
§  Made available to the public
§   (3rd party doctrine)
ú  If you talk to a third party, you are accepting the risk that the third party will pass along this information to the police, and you have no REP.
ú  Applies to bank documents. There is no REP in negotiable instruments to be used in commercial transactions, documents containing only information voluntarily conveyed and exposed to bank employees in the ordinary course of business. (Miller)
§  Binary drug test
ú  Not a search because there is no legitimate privacy interest in the use of contraband or illegal narcotics.
§  Sense enhancing technology
ú  When sense enhancing technology that is not in general/public use is used to obtain information about the interior of a home that could not have otherwise been obtained without physical intrusion, a search occurs. REP violated. (Kyllo)
§  Trash left outside
ú  No REP, even in opaque bag, because anyone can go through it.
§  Aerial search
ú  No REP of property exposed to aerial search, even the curtilage. (Riley)
§  Effects that were previously opened by a private party
ú  No REP where a private party has previously opened an effect, which remains unsealed, and government agents have been invited to examine its contents. (Jacobsen)
§ 

and articulable facts and circumstances before the officer are such as to warrant a man of reasonable prudence and caution to believe that an offense has been committed or is being committed based on totality of the circumstances.
§  Examples
ú  When a citizen has recently and repeatedly given substantial ground for believing that he is engaged in criminal acts, then is stopped by an officer in that region who knows that at the time of the stop, and the circumstances under which the stop is made do not indicate that the suspect is going about legitimate affairs, then there is PC. (Brinegar)
ú  If an informant is known to be reliable and there is corroboration of an informant’s information there is PC. (Draper)
ú  Information given to an officer coming from an informant whose information had always been found accurate and reliable can establish PC. (Draper)
ú  The totality of the circumstances analysis should be used to determine PC, and basis of an informant’s knowledge and veracity of an informant are factors to be considered. (Gates)