Stinneford – Criminal Procedure – Fall 2013
INTRODUCTION TO THE FOURTH AMENDMENT
I. FOURTH AMENDMENT
a. “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.”
b. Rights found in the Fourth Amendment
i. Rights against unreasonable seizures
ii. Rights against unreasonable searches
iii. Warrants must be based upon probable cause
iv. Warrants must be supported by sworn statements demonstrating that probable cause
v. Warrants must particularly describe the place to be searched
vi. Warrants must particularly describe the things to be seized
vii. Warrants must explicitly name any person to be seized
PASSING THE THRESHOLD OF THE FOURTH AMENDMENT
I. WHAT IS A SEARCH?
a. General principles
i. What triggers Fourth Amendment protection:
1. A search of a person, house, paper or effect
2. A seizure of a person, house, paper or effect
ii. Steps in Fourth Amendment Analysis:
1. Whether the police conduct constitutes a search?
a. If no search, then no Fourth Amendment search issue
b. If there was a search, then move to next question
2. Was the search reasonable?
a. Searches without a warrant are per se unreasonable
b. Katz v. United States Standard – “expectation of privacy”
i. What Katz sought to exclude when he entered the booth was not the intruding eye (for example, a lip reader), but rather the uninvited ear
ii. Majority
1. Fourth Amendment protects people, not places
2. If the person seeks to preserve the matter as private, it is protected
3. If you knowingly expose it to the public, it is not protected
iii. Two prong test – concurrence – CURRENT STANDARD
1. Subjective: Whether the individual, by his conduct, has exhibited a subjective expectation of privacy?
2. Objective: Whether the person’s subjective expectation of privacy is one in which society would recognize as a reasonable expectation?
iv. Example:
1. The use of pen registers – Petitioner in all probability entertained no actual expectation of privacy in the phone numbers he dialed, and that, even if he did, his expectation was not legitimate. The installation and use of a pen register, consequently, was not a search, and no warrant was required
c. Three ways the government listens to conversation of persons suspected of crimes:
i. Eavesdrop on a conversation between A and B
1. Fourth Amendment violation
ii. Government may participate in the conversation itself, as when A talks to B, who turns out to be an undercover police officer or friend-turned-government-agent
1. Not a Fourth Amendment violation
iii. False friend B will tape record the conversation or be wired with a transmitter
1. Not a Fourth Amendment violation
d. Kyllo v. United States Standard (use of technology)
i. Four prong elemental test:
1. Governmental use of a sensory enhancing technology
2. That is not in general public use
3. Used to explore details of the home
4. That would be unknowable without physical intrusion
ii. Use of GPS technology
1. United States v. Karo
a. Police’s attaching of a GPS beeper to a can of ether purchased by defendant was okay so long as it was only used to show where defendant was located and travelling, for it can be seen by the public
b. However, once the beeper started to track where the defendant was moving around inside his home, it became an illegal search
2. United States v. Jones
a. The court refused to decide this case upon the Fourth Amendment analysis, but instead, used common law trespass to say that the police trespassed upon Defendant’s car in order to attach the GPS
b. The concurrences alluded to the fact that the Court did not address the real issue – using a GPS device to track defendant’s movements for a long period of time, which gives more personal details than just where the defendant may be travelling (going to church, shopping, doctor visits, etc.)
e. United States v. Jones Standard
i. Two alternative ways:
1. Was there a violation of a reasonable expectation of privacy?
2. Was there an unlawful physical intrusion on a constitutionally protected area (person, house, paper, or effect) for the purpose of gathering information?
f. Different standards for different methods/areas:
i. Dog sniffs
1. Canine sniffs are permissible under the Fourth Amendment because
a. The sniffs only reveal a limited amount of information – the presence or absence of narcotics – and does not expose the items that otherwise would remain hidden from public view (US v. Place)
b. The Fourth Amendment only protects legitimate interests in privacy, and conduct that only reveals the possession of contraband does not compromise legitimate privacy interests (Illinois v. Caballes)
officer’s knowledge, and of which are reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in the belief that:
1. An offense has been or is being committed (for arrest) OR
2. Evidence subject to seizure will be found (for search)
c. Two cases in which the issue of probable cause arises:
i. Police may apply to a magistrate for an arrest or search warrant. Warrants constitutionally may only be issued if there is probable cause.
ii. If a warrant was not issued and a search was conducted, the judge must decide whether the police had adequate evidence – probable cause – BEFORE they conducted the warrantless search or arrest
1. Ask yourself – If the police had sought a warrant, would it have been granted?
2. Less likely to be upheld as valid because provides the police with an incentive to seek a warrant
d. How do you know if the information (when given a tip) is trustworthy?
i. What is the basis of knowledge of the informant’s conclusion?
1. Veracity or reliability of the informant
2. Example – When an officer gives an affidavit under oath, it is likely the truth
ii. What proves that the informant’s conclusion is credible and his information is reliable?
1. “I saw it” – pretty reliable
2. “Somebody told me” – reliability depends on how that person knew
3. “Saw something that made me infer” – how good is your inference?
4. Example:
a. When a tip doesn’t describe the accused’s criminal activity in enough detail, but rather seems to only be a reiterated casual rumor, then it most likely will not suffice
b. When a tip describes in detail what the petitioner would be wearing, what bag he would be carrying, and what time he was arriving, this detail could properly infer that the informant had gained the information in a reliable way
5. Corroboration:
a. Corroboration helps both prongs of whether the informant is correct because to what somebody is going to do in the future implies a more intimate basis of knowledge
b. But you still must determine whether you are corroborating innocent conduct or corroborating criminal conduct
c. Corroboration of only innocent conduct may not be enough
The tip must be more relatively unique – not just something non-personal
