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Criminal Procedure
University of Illinois School of Law
Ross, Jacqueline E.

Criminal Procedure Outline – Ross – Spring 2010
 
I.  The Fourth Amendment:  Scope and Threshold of Protections: 4th A sometimes insulated the criminality of a few in order to protect the privacy of many. 
The Fourth Amendment and the States
The 14th A incorporates the 4th A, prohibiting States from using unreasonable searches and seizures to obtain evidence
Wolf v. Colorado
·         The court says, ppl enjoy these rights against the states because the concept of ordered liberty makes all these rights fundamental.
 
What is a Search?
General Principles
·         Searches interfere w/ privacy
·         1st clause:  Searches and seizures are unregulated by the 4th A unless “they bear the requires relationship to “persons, houses, papers, and effects.”
·         2nd clause:  Provides that no warrants shall issue but those “particularly describing the place to be searched, and the person or things to be seized.”
 
The 14th A protects all communications that a person does not knowingly expose to the public;
A  wiretap in a public phone booth violates the 14th A.
Katz. v. US
·         Scope of the case: Tells us what a search is when it doesn’t involve paper, effects, homes.
o   The 4th A protects ppl, not places.
o   Part of the protection of ppl are the protection of their activities, and their personal sphere
o   Protects an interest you can have in a place you have no property rights. 
·         Critical Question: Whether the person exposes to the public, or preserves as private.
o   Places are not completely irrelevant, but they are not dispositive. 
·         TEST from Katz:
o   Subjective prong
§  Is there an actual subjective expectation of privacy?
o   Objective Reasonableness prong
§  Is that expectation one that society is prepared to recognize as “reasonable”? 
 
 
1st tier: use of informants bc you don’t need warrants for that
2nd tier: wiretap, bc you do need warrants for that
 
 
The Katz Doctrine in Application
A ∆ bears the risk that communications with another will be transmitted to government agents;
Electronic surveillance obtained w/an informant’s consent IS admissible
US v. White
·         Gradual evolution of the current ruling:
o   Hoffaà “false friend”
§  Agent can transcribe conversations w/∆ after having the conversation, which can be used for evidence.
§  We trust ppl at our own risk.
o   Lopezà “false friend w/a tape recorder”
§  Agent can record conversations w/∆ w/electronic equipment carried on his person
§  Harder to discover bc gov deliberately manipulates reality to create relationships for the sole purpose of betrayal.
o   On Leeà”false wired friends”
§  Agent can record and transmit conversations to other agents monitoring the frequency w/electronic equipment
·         While ∆ subjectively had an expectation of privacy, it fails the objective prong of the Katz test, bc society is not prepared to recognize that expectation of privacy as “reasonable” since there is always a risk of betrayal that someone would not keep those conversations private.
Dissent
·         Just bc you accept a risk that friends will betray you is different than expecting your “friends” to already be agents w/the purpose of deceit and who are completely misrepresenting your relationship.
·         A recording is fundamentally different bc the level of detail and representation is completely accurate, and society has a way of censoring themselves in light of this fact.
 
 
An individual assumes the risk of disclosure of information knowingly conveyed to a 3rd party;
Recovering telephone numbers w/a pen register does NOT constitute a search
Smith v. MD
·         Expectation of privacy not objectively reasonable bc…
o   Telephone users realize that they must “convey” phone numbers to the telephone company, who then makes permanent records of the numbers they dial
o   No legitimate expectation of privacy in info voluntarily turned over to third parties, U.S. v. Miller.
Dissent:
·         Revealing the id’s of the persons/places called reveals the most intimate details of a person’s life.
·         Not true that by giving info to a 3rd party, that ∆ expects this info to be made available to the public in general or the gov in particular.
·         Implicit in assumption of the risk” is the notion of choice/alternatives.  None exist here.
 
 
Open Fields & Curtilages
Curtilage defined:  An extension of the house, including offices, commercial structures, etc.
 
Factors of determining whether a something is “curtilage”
·         the nearness from the house.
·         Does the D do something to protect this space from observation
 
What is NOT curtilage
·         A barn (despite a fence, the agent was able to sniff and shine flashlight into window
·         Open fields
·         Flying over a backyard (unless an awning is over it)
·         Anything underground
 
 
 
The use of device not used by the general public to obtain evidence emanating from the interior of a residence that cannot otherwise be obtained w/o physical intrusion constitutes a search;
Using thermal imaging to obtain evidence from a private residence DOES constitute a search.
Kyllo v. US
·         The 4th A recognizes the sanctity of the home, and so the expectation of privacy is most heightened.
o   All details are intimate details, bc the entire area is held safe from prying gov eyes. 
·         No cop would be able to know in advance whether his through-the-wall surveillance picks up “intimate” details, so no way of knowing in advance whether it’s constitutional.
·         Once you care about info coming from inside the house, then you have to protect mundane along w/important info.
Dissent:
·         Test should beà Whether the technology provides the functional equivalent of getting info that you could acqu

themselves do NOT give rise to probable cause.
IL v. Gates
§  Agular’s demands were too rigid, and forced magistrates to conduct full evidentiary hearings before issuing warrants.
§  Three principled criteria remain: the veracity, reliability of knowledge, and basis of knowledge.
o   However,  now, you don’t have to have all elements to satisfy probable causeà you can make up for weak element w/strength of another one.
§  Factors to consider:
·         Reliability of the source
o   Corroborationà A majority of the claims made are found to be true, so likelihood that other claims are also true is strong.
o   Track recordà Informant has given successful tips to other criminal cases.
·         Veracity
o    Ultimate truthfulness of the situation.
·         Basis of knowledge
o   Informant either makes an admission of how he knows what he knows, or does not.
o   If he does not, the basis of knowledge case be substituted for a high level of detail/specificity of allegations.
o   A flexible test is necessary to allow for the corroboration to make up for basis of knowledge. 
Dissent:  The purpose of Aguilar was to assure the magistrate’s role as an independent arbitrator of probable cause and greater accuracy in determinations.  That’s gone now.
 
 
Arrest Warrants
Arrest in the open public:  No need for an arrest warrant
 
Arrest in the home:  Need an arrest warrant (absent exigent circumstances)
If warrant not secured, the evidence is suppressed.
Payton v. NY.
o   Cops must have an arrest warrant if they are going to arrest someone in their home
o   The 4th gives special protection to the home, in order to prevent interference of privacy/liberty
o   For an arrest warrant, there is also the implicit permission to do a “search incident to an arrest.”
o   Search immediate area around ∆
§  prevent harm or destruction of evidence
o   Search the home to find ∆
o   Exigent Circumstances
o   Hot pursuit
§  Ex.  Police are chasing ∆ down the street and he runs into the house warrant.
o   Risk of escape
§  Ex.  The police stop to get a warrant, the suspect will get away
o    Danger to police/populace
§  Ex.  Killer ∆ runs into home with family and 5 children
o   Risk of evidence being destroyed
§  ∆ goes into home and knows police are after him. Police fear ∆ will destroy the evidence