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Criminal Procedure
University of Denver School of Law
Kamin, Sam

Criminal Procedure Outline – Professor Kamin (Spring 2018)


Language: “the right of the 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 upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Steps –

1. Does 4th amendment apply? (Was there a search or seizure? If not, stop because the 4th amendment does not apply)

2. Was 4th amendment violated? (Was the search or seizure reasonable?)

3. If the 4th amendment applies and was violated, now what – what remedies are appropriate?

(last sentence on pg. 23)


A. Persons, Houses, Papers, and Effects

2 theories for 4th Amendment –

1. Warrant Preference Theory (aka Warrant Clause): searches are generally unreasonable unless authorized in advance by a warrant. Only if the government has probable cause can it obtain a warrant and things we require of a warrant.

2. Reasonableness Theory (aka Reasonableness Clause): everything leading up to the comma after violated – all searches and seizures must be reasonable; government cannot unreasonably search

The relationship between these two clauses is

-All searches have to be reasonable

-Reasonableness means probable cause when talking about warrants

Because it comes first the reasonableness clause is more important = one reading

-The fourth amendment has been read to express a preference for warrants (warrants are the default – they are mostly necessary)

*Footnote 4 on pg. 6


Olmstead v. United States

Facts – government tapped phones in Olmstead’s office and home

Holding – listening to phone calls is not a search and no seizure (so cannot be an unreasonable s or s)

Katz v. United States

Facts – wiretapped public phone booth

Holding –Constitution protects persons not places; reasonable expectation of privacy; wiretapping is a search or seizure; unreasonable because no warrant

Oliver v. United States

Facts – officers search Oliver’s field and found marijuana

Holding – can search open fields without a warrant at any time (not a constitutionally protected area)

United States v. Jones

Facts – GPS tracker on car

Holding – this is a search (car is a constitutionally protected area)

B. Searches

Courts must figure out when the search occurred

Ways government can conduct a search –

1. If government intrudes against an unreasonable expectation of privacy, it’s a search (Katz)

2. A search has occurred if the government has obtained info by physically intruding against a constitutionally protected area (Jones)

Katz is still true but in addition, this is another test

-Cases resolved under Jones must have a physical intrusion component


United States v. White

Facts – wiretap government informant

Holding – Ds assume the risk when they confide in others (3rd party doctrine)

United States v. Miller

Facts – use of bank records to incriminate

Holding – no reasonable expectation of privacy in bank records (not a search)

California v. Greenwood

Facts – garbage collector brought trash to police

Holding – no reasonable expectation of privacy in trash (not a search)

Florida v. Riley

Facts – helicopter search found marijuana

Holding – no reasonable expectation of privacy – uncovered spots and helicopters aren’t abnormal (not a search)

United States v. Jacobsen

Facts – FedEx package damaged with cocaine

Holding – FedEx is not government; government’s search revealed nothing other than cocaine or not


Facts – cell pho

e circumstances (there was probable cause)

Florida v. Harris

Facts – dog alerted on car door handle

Holding – there was probable cause

Maryland v. Pringle

Facts – officer searched car, found drugs, and arrested all occupants of car

Holding – the presence of drugs in a car gives probable cause to arrest everyone in the car

B. Warrants

Officer goes before a magistrate – usually a judge but sometimes different and says here’s why I think there’s probable cause to believe committed a crime or will find something

1. Particularity

Particularity on probable cause limits discretion of officers – assure homeowner if she is being searched there is good reason and someone not with law enforcement has made that decision


Maryland v. Garrison

Facts – officers “accidentally” searched both apartments

Holding – this was reasonable because the validity of the warrant is based on what the officers knew in good faith at the time (Kamin thinks this was “really bad”)

Groh v. Ramirez

Facts – officers searched pursuant to a warrant that just said “search the house”

Holding – this warrant was facially invalid (no reasonable officer could look at it and say it complies with the Constitution)

2. Neutral and Detached Magistrate

Magistrate has to be independent – cannot be paid by the warrant or law enforcement

-Must be neutral

-Does not necessarily have to be an attorney, just a neutral person

3. Need for a Warrant