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Criminal Procedure: Investigation
University of Illinois School of Law
Johnson, Eric A.

Criminal Procedure: Investigations
University of Illinois College of Law
Professor Eric Johnson
Fall 2012
Criminal Procedure: Investigations
v The Fourth Amendment
Ø “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 person or things to be seized.”
v Introduction to Search and Seizure
Ø Who is subject to the constitutional prohibition on unreasonable searches and seizures?
·         “The People” = a class of persons who are part of a national community or who otherwise have developed sufficient connections to this country to be part of the community.
·         “The People” does not include a search or seizure of property located in a foreign country owned by a non-resident alien briefly on U.S. soil.
·         even if such search is conducted by the U.S. Law enforcement
Ø Who is subject to the Fourth Amendment Exclusionary rule?
·         NOT private parties. Ex. Private Investigators
§  Any evidence a private investigator procures and then hands to the police cannot be excluded.
§  On the other hand, if police are involved, such as by directing the private party (in this case a landlord), then there is a violation of the 4th Amendment.
·         How to distinguish between private and public agents
§  Ex. Peoria cop recognizes his father in surveillance photos from a bank robbery. He searches his dad's house, finds evidence that ends up convicting his dad.
§  The motive of the cop/son for going into his dad's house is important – was he going in as a police officer looking for a suspect? Or was he going in as a concerned son?
§  Another factor: the dad's house wasn't in the son's jurisdiction
§  Other factors: what kind of clothes was the son wearing? His official uniform? T-shirt and jeans?
Ø Exclusionary Rule's underlying Rationale
·         Purpose of the 4th is to protect privacy of individuals from the state. A man's castle is his home
§  To allow a warrantless/unreasonable search of a private individual's home would devalue the 4th Amendment.
·         It's essentially a judiciously created remedy to enforce the 4th Amendment. But it does not actually exist in the 4th Amendment itself
§  SCOTUS believes the sole purpose is deterrence of police misconduct
§  Removes future incentives to disregard the 4th Amendment.
·         “In effect, by adopting the exclusionary remedy the courts have decided to hire criminals to act as private attorneys general to prosecute the police for constitutional violations. When successful, these private attorneys general are handsomely rewarded with liberty they do not deserve.” – U.S. v. Brown (D.C. Cir. 1981) (Wilkey, J., dissenting)
v Defining the Scope of the Fourth Amendment
Ø Search
·        Katz told us it's when the government violates the 4th by going into a space where the person reasonably expects privacy.
·        As Justice Scalia says, Katz is designed to help us figure out when a search is not a search.
§  Until a police activity rises to a threshold level of intrusiveness, it's not a search or seizure
§  Lots of police activities don't qualify as either search or seizure
·        The Katz two-pronged test (laid out by Justice Harlan's concurrence in Katz):
v  The subjective (or factual) prong
w  Privacy can hinge on outsiders and insiders
w  If you knowingly expose your conversation to an outsider, that relinquishes your expectations of privacy
w  Ex. Talking loudly on a train when you're on the celly
v  The objective (or normative) prong
w  The expectation of privacy is one that society generally recognizes as “reasonable.”
w  What's “reasonable” is also a normative question
·        Applying the Katz doctrine to determine what is a search
§  Steps in the application
Ø  Define specifically the “expectation of privacy” at stake (this is very important. Be specific!)
Ø  You define the expectation of privacy by the police activity that's being done
Ø  It requires the court to assess the nature of a particular practice because privacy is not a commodity, it's defined by degeree
v  Decide whether the D actually entertained that expecation
Ø  Factual inquiry
v  Decide whether the expectation is one that society is prepared to recognize as reasonable or “justifiable.”
Ø  Normative inquiry
Ø  Factors that go into answering this (there are four big ones):
Ø  Degree to which the matter is already exposed to outsiders
§  If it's something like vapors from pot plants. Vapors are generally something the public does NOT notice, which is at the heart of why the majority did not feel the melting snow was dispositive in Kyllo
Ø  intimacy of info revealed
§  Criminal activity is NOT private
Ø  The countervailing law enforcement interest.
§  The degree to which the monitoring or recording of the privacy interest at state might incrementally affect our sense of security
v  Tradition
·         The possibility that speech will be “chilled.”
·         The possibility of gov. abuse
§  The 4th and the Katz  do not bar evidence or testimony of government agents who had eavesdropped on conversations between the D and the informant.
§  Katz says that a D does not have a justifiable or constitutionally protected expectation that a person whom the D is talking to will not become an informant.
w  If a D believes his private conversation with another is protected from intrusion, that's a misplaced belief.
w  The big question: What expectations of privacy are constitutionally justifiable?
§  Smith: (the pen register case) You can't have an expectation of privacy concerning the numbers you dial or the any info you give up to a third-party biz because third-party companies are outsiders
w  SCOTUS has held that no one has a legitimate expectation of privacy in information he voluntarily hands to 3rd parties.
w  When D used the phone, he voluntarily “exposed” himself and thereby got rid of any expectation of privacy. He therefore assumed the risk the phone company would hand info to the police.
w  Narrow and Broad holding of Smith
Ø  Narrow: Use of a pen register isn't a search
Ø  Broad: Information provided by customers to businesses generally isn't private
§  Open fields
w  Not a search
w  Open fields are already exposed by passer-bys and aircraft
w  Nothing “intimate” by what's revealed from an open field
§  Trespassing on curtilage
w  Curtilage is an area that would be considered a search
w  How to decide whether an area around the home is curtilage
Ø  The proximity of the area to the home
Ø  Whether the area is included within an enclosure surrounding the home
Ø  The nature of the uses to which the area is put
Ø  Other steps taken by the resident to protect the area from observations by passerbys.
·         Fences?
·         Hedges?
·         Other natural things that protect the view of the home from outsiders?
w  But, keep in mind that as Katz put it:
Ø  “What a person knowingly exposes to the public/outsiders, even in his own house or office, is not a subject of Fourth Amendment protection”
Ø  Which means that just because D's activity takes place in curtilage does not automatically remove it from ability of police to search without a warrant
·         Ex. PO could use evidence from doing air surveillance over the D's curtilage.
·         It's also possible that a helicopter monitoring an exposed greenhouse-curtilage would be a search if there were a law that said the airspace above the greenhouse were off-limits.
§  Dog sniffs
w  Dog sniffs are not intrusive like opening the contents of someone's luggage and then rummaging
w  Sniffs only show police whether there is or isn't drugs. Less intrusive than visual searches
w  Canine sniffs are sui generis, their application is limited = almost always do not qualify as a 4th Amendment search
§  Rummaging through curbside trash
w  No reasonable e

that there is a fair probability that the triggering condition will occur
Ø  Challenging a warrant
·         D can challenge a warrant on the ground that it was based on reckless or knowing misrepresentations by the officer
§  The court then subtracts the misrepresentation from the warrant affidavit and subsequently determines whether there's still PC
·         D can also challenge a warrant on the ground that the magistrate who issued the warrant lacked probable cause
§  However, considerable deference is accorded to decisions of the judge who issued the warrant
§  Good faith exception by cop (not important for the test): D can challenge warrant but no exclusionary rule: no suppression of evidence if cop got evidence executing a search warrant and if the cop reasonably believed the warrant was valid (otherwise, if there was “good faith” that the warrant was valid. This flows from a fault by the magistrate.)
w  Good faith exception makes sense because exclusionary rule is prophylactic applied to PO misconduct, not magistrate/judge misconduct
Ø  Probable Cause to get a warrant based on info from an anonymous informant / confidential informant – applies to hearsay as well. – does not apply to citizen informants (or other police officers) whom we already trust as already having veracity and a basis of knowledge
·         Aguilar-Spinelli's two prong test
§  The “veracity” prong requires the police to supply the judge with some basis for judging the informant's credibility
w  Proving veracity includes:
w  Evidence of past reliability
w  Hearsay type guarantees of trustworthiness
w  Corroboration (?)
§  The “basis of knowledge” prong requires the PO to tell the judge how the infromant came by the info in informant's report
w  Proving “basis of knowledge” includes:
w  Corroboration (?)
w  Direct info from the informant about how he acquired the info
w  Self-verifying details
·         If one prong is flawed, it does not necessarily make the information non-PC – Gates. If the other prong is really strong, then that could still give the PO PC
Ø  Arrests with or without warrants
·         Why challenge legality of the arrest?
§  Arrest might have resulted in the discovery of physical evidence during a lawful “search incident to the arrest” – fruit that can be suppressed
§  The arrest might have resulted in a confession by the defendant during post-arrest questioning
§  Also, although the D himself is not a “fruit” of the illegality of the detention, if the conduct of the cops is so shocking that it shocks the conscience of the court, a criminal court might throw it out. (Ex. Physical force/beating)
·         Limits on warrantless arrests in public places
§  No warrantless arrests for felonies
§  No warrantless arrests for misdemeanors, unless
w  The offense must be committed in the officer's presence; or
w  That the offense be a “breach of the peace.”
w  Not constitutionally required, just what many states  have instituted
·         Gerstein hearing requirement with warrantless arrests
§  If police conduct a warrantless arrest the police must show the magistrate that there was probable cause to arrest in the first place within 2-3 days.
§  An ex parte hearing is ok, can even be done by submitting an affidavit to the magistrate.