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

Criminal Procedure-Investigations
Fall 2012
Introduction to the 4th Amendment
4th Amendment
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.
Part 1: Reasonableness Prong
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . .
Persons: Includes the actual person and his clothing
Houses: Includes his home, apartments, etc.
Effects: the “catch-all”, includes cars, luggage, etc.
Part 2: Warrant Requirement
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.
4th Amendment Balance
A compromise between the need of Government officials to gather evidence and the right of citizens to be free from governmental intrusions
4th Amendment Protects
Two types of expectations: Searches/Seizures
Search occurs when an expectation of privacy that society is prepared to consider reasonable is infringed (Privacy Interests)
Seizure of property occurs when there is some meaningful interference with an individual’s possessory interest in that property (Possessory Interests)
·         Four Core Concepts:
o   Accuracy = not convicting innocent people + not letting guilty people go free
§  More worried, however, about innocent people being put in jail rather than guilty people being let off
o   Fairness = respect for human dignity
o   Prevention of government overreaching = value individual rights
o   Efficiency
Key Issues
·         Standing = Only the person whose personal 4Amendment rights have been violated has a 4Amendment claim
·         Exclusionary Rule = Evidence obtained by the government in violation of the 4Amendment is inadmissible against the person whose 4Amendment rights have been violated
·         Pre-trial adjudication = Judge makes all the findings of fact and rulings of law (outside jury’s presence)
Dressler’s Checklist
·         Key Question: Should a particular, tangible object or oral communication, secured by government agents, and which the prosecutor intends on introducing at trial against the defendant in the State’s case-in-chief, be excluded because it was obtained in violation of the 4th Amendment?
1.      Does the defendant have standing?
2.      Did the police activity implicate a “person, house, paper or effect”?
3.      Did the police activity constitute a “search” or a “seizure”?
a.       If so, did the police have adequate grounds to conduct the search or seizure?
                                                  i.      Probable cause? Reasonable suspicion?
b.      Did the police act on the basis of a warrant?
                                                  i.      Did they obtain the warrant properly?
                                                ii.      Was the magistrate issuing the warrant neutral and detached?
                                              iii.      Was the warrant particular enough?
                                              iv.      Did the police execute the warrant pursuant to the specifics on the warrant?
Remedies of 4th Amendment Violations
SUPPRESION via the Exclusionary Rule
Exclusionary Rule: Evidence obtained in violation of the defendant’s 4th Amendment rights must be excluded from trial.
The Weeks Rule (1914) – Exclusionary Rule for Federal Courts (Weeks v. United States)
If illegally obtained evidence could be used against the defendant in his trial, “the protection of the Fourth Amendment declaring his right to be secure against such searches and seizures is no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution.”
à Specifically rejected the notion that the exclusionary rule should apply to state or local police.
Two Rationales for the Exclusionary Rule
1.      Exclusionary rule is the only meaningful way to assure that officials respect the 4th Amendment rights of the people
2.      Interest in judicial integrity requires that the courts not sanction illegal searches by admitting the fruits of illegality into evidence
Wolf v. Colorado (1949) à OVERRULED BY MAPP V. OHIO
1.      Whether the 4th Amendment was such a fundamental right that it should be incorporated into the 14th Amendment’s Due Process Clause and thus applicable against the states?
a.       Security provided by the 4th Amendment was “basic to a free society” and “implicit in the concept of ordered liberty” and thus enforceable through the DPC of the 14th Amendment
b.      Right to be free from unreasonable searches and seizures = fundamental
2.      Whether the exclusionary rule should similarly be applicable to the states through the Due Process Clause of the 14th Amendment?
a.       However, “the ways of enforcing such a basic right raise questions of a different order.” The Weeks rule “was not derived from the explicit requirements of the 4th Amendment” and therefore that the exclusionary rule was not a constitutional requirement.
b.      States had such opposition to the rule and “the incidence of such conduct by the police [is] too slight to call for a deterrent remedy.”
c.       Exclusionary rule = not fundamental
Mapp v. Ohio (1961)
·         Overrules Wolf v. Colorado and says “all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court
·         Reasoning: If not, the 4th Amendment would be little more than a “form of words,” and deprived of the force of law.
Ker v. California (1963)
·         “Henceforth, state searches and seizures are to be judged by the same standards as apply in the federal system.”
Who does the 4th Amendment apply toward?
·         Federal and State officials
·         Not private actors
·         However, if private actors encouraged or forced by federal/state officials, then the private action may be subject to the 4th Amendment
Underlying Rationale for the Exclusionary Rule – DETERRENCE
“The purpose of the exclusionary rule ‘is to deter – to compel respect for the cons

any subjective expectation of privacy.
à Need more than just a “hope of privacy”
Reasonableness Prong
Assessing the nature of a particular practice and the likely extent of its impact on an individual’s sense of security balanced against the utility of the conduct as a law enforcement technique. (United States v. White, Harlan’s dissent)
White v. United States (Participant-Monitoring = NO SEARCH)
At the request of federal agents, Jackson participated in conversations with White who was a suspected drug dealer. Jackson wore a wire, so the agents could hear his conversation. Agents want to use conversations at trial. Search?
à NOT A SEARCH because Jackson (the informant) gave his consent to the government surveillance (Participant-Monitoring: One party gave consent to be monitored)
Smith v. Maryland (Pen Registers = NO SEARCH)
Police installed a pen register device in the phone company offices to record the phone numbers called by the defendant on his home telephone.
Court: Not a search because the defendant had no right to expect that the phone numbers he called would remain private; in making the phone calls, he gave this information to the phone company and therefore equivalent access by the government could not be denied.
United States v. Miller (Bank Records = NO SEARCH) à NOT DISCUSSED IN CLASS
Government served a subpoena on Miller’s bank to obtain copies of his checks, deposit slips and financial statements.
Court: Not a search because the defendant did not have a reasonable expectation of privacy in information which he had conveyed to the bank.
Dissents in Miller and Smith: Defendants did not grant access to all or most members of the public, just one specific group: the bank or telephone company. Furthermore, the conveyance of information was not a product of free choice: It is hard to do without a phone or bank account.  
“It may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties”
            — United States v. Jones (2012) (Sotomayor, J., concurring)
Response to Dissents: Issue is not that of free choice, but rather whether society is prepared to accept a privacy expectation as reasonable where members of the public have access to the information. No reason to create a distinction between access to members of the public and access by the police. If at all exposed to the public, it should be equally exposed to the police.
Exposing information to outsiders = no reasonable expectation of privacy