Criminal Procedure Outline

Crim Pro – Stinneford – Fall 2014

4th AM

1. The text and its mysteries

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

i. Very ambiguous with no definitions. What is “people”, “effect”, and “reasonable”

2. The reach of the 4th AM

a. Category of persons searched

i. Verdugo-Uruidez

1. Mexican resident arrested for drug charges. While in US prison, US and Mexican police searched his home in Mexico.

2. Does the 4th AM apply to property in foreign country owned by non resident alien?

a. No He is not “the people”

b. Need to be here lawfully or have a substantial connection

b. Only applies to gov action

i. Doesn’t apply to landlords or airline baggage checkers

ii. Private searches and seizures are not covered

1. Doesn’t matter if private person searching is unreasonable

a. Private security guard

b. Neighbor breaks into house

c. Computer hacker stumbles on child porn

iii. However, if the person acts on behalf of the gov, it is a violation

3. What is protected

a. The 4th AM expressly protects persons, houses (including hotel rooms), papers, and effects.

i. “Houses” includes the curtilage, offices, stores and other commercial buildings.

ii. Jones – vehicle is an “effect”

b. The Fourth Amendment does not protect account records held by a bank, anything that can be seen in or across the open fields, garbage left at a curb for collection, barns, odors (cars and luggage), or anything that can be seen below when flying in public, navigable airspace

Ch. 3 Passing the Threshold of the 4th AM

1. 4th AM checklist

a. Does D have standing

b. Is D among “the people” protected by the 4th AM

c. Who did the searching

d. Did the police activity implicate a person, house, paper, or effect

e. Did the police activity constitute a search and/or seizure

f. Was the search/seizure unreasonable

i. Did the police have adequate grounds to conduct the search/seizure

ii. Even if the police had PC, did the police obtain a search/arrest warrant

1. If yes, did the police obtain the warrant in the proper manner? Was the party issuing the warrant a neutral and detached magistrate? Was the warrant in proper form? Did the police execute the warrant properly?

2. If no, did the police have a valid reason for not obtaining the warrant?

g. Does the exclusionary rule apply?

i. If so, does the gov seek to introduce any other evidence that is a fruit of the poisonous tree?

2. 4th AM only applies to SEARCHES AND SEIZURES

a. Constitution doesn’t prohibit all unreasonable law enforcement practices

b. As far as the 4th AM is concerned, police can act arbitrarily or unreasonably as long as there is no search or seizure

c. Searches and seizures are unregulated by the 4th AM unless they bear requisite relationship to persons, houses, papers, and effects

Was there a search

1. Katz test – violate persons reasonable expectation of privacy

a. Did the person exhibit a subjective expectation of privacy

b. Is the expectation one that society is prepared to recognize as reasonable (objective)

c. Remember this does not require intrusion

2. Jones test

a. Physically intrude

b. Onto constitutionally protected area (person paper effect house)

c. For the purpose of obtaining information

3. Kyllo test

a. Use technology

b. To get info you couldn’t otherwise get without tech

c. Where tech is not in general public use

4. Katz v US

a. Facts. FBI agents recorded phone call from device placed on outside while Katz was in a phone booth.

b. Arguments

i. Gov argues that the booth was made of glass

1. Court says he wasn’t protecting what people could see, but what he was saying

ii. Gov argues there was no penetration into the booth

1. Although there was not a technical trespass, the person can still be protected

c. Issues. Is phone booth constitutionally protected area? Do you need physical intrusion?

d. Court

i. Court says people, not places, are protected. Therefore analyzing whether a phone booth is a constitutionally protected space is not the correct analysis.

1. You don’t need an intrusion.

ii. What a person knowingly exposes to public view is not protected by 4th AM

iii. What he seeks to keep private may be protected, even if accessible area to public

iv. The gov’s activities in electronically listening to and recording the petitioners words violated the privacy upon which he justifiably relied while using the phone booth and thus constituted a search and seizure within the meaning of the 4th AM

e. Concurring Harlan sets out test for search

i. Person exhibits a subjective expectation of privacy

1. Yes he went into phone booth and shut door

ii. The expectation is one that society is prepared to recognize as reasonable

1. People regard phone booths as private place

iii. This was later adopted in Smith v Maryland

f. What this means for search warrants

i. Easy to imagine telling judge they are looking for particular painting

1. Tangible

ii. Difficult trying to get warrant to wiretap future conversation

1. Intangible

5. Objective and subjective

a. Subjective

i. If cops announce they are going to read emails, people will know they are going to do it

1. No subjective element

b. Objective

i. Site or nature of property inspected

1. Open fields is not a search while curtilage is

2. No legit expectation of privacy in drugs

ii. Extent to which the person has taken measures to keep property or activity private

1. Assumes the risk if he knowingly exposes to public

2. Assumes the risk if he tells a friend

iii. Degree of intrusion

1. How much information is gathered

6. False Friend

a. US v White

i. Facts. D’s conversations with informant were transmitted by radio transmitter. Conversations were in informant’s home with agents inside the house and outside, in restaurant, and car. Informant disappears before trial.

ii. Court

1. Hoffa and Lewis – Undercover officer may write down his conversations with a defendant and testify concerning them, without a warrant

a. No different if you record simultaneously

2. Applied Katz

a. You have assumed the risk that the 3rd party will betray you and give info to cops

b. Therefore you don’t have a reasonable expectation of privacy

3. Sending in gov with microphone/wire is not regulated by 4th AM

a. Gov can do with no restrictions

b. Different types – same reasoning

i. Katz- police eavesdrop on conversation between A and B

ii. Hoffa- A talks to B, but B is a paid gov informant

iii. Lopez- False friend tape records the conversation

iv. On lee, White- False friend is wired

7. Pen Register – NSA wiretapping

a. Smith v Maryland

i. Facts. McDonough was robbed and gave a description of the car. She then received threatening phone calls. Police spotted a man driving the described monte carlo and found out it was registered to Smith. Police had the phone company install a pen register (records numbers dialed only) at the mans home.