Select Page

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

Criminal Procedure
Spring 2015
Fourth Amendment
Dressler: 4th Amendment
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?
Fourth Amendment: The right of people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated, and (b) 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. (Reasonableness Clause + Warrant Clause)
Reach of 4A: “People” is not all-inclusive
–  US v. Verdugo-Urquidez: Mexican resident arrested on drug charges, brought to US for trial. While in prison, DEA agents seized property from his Mexican residences w/o a search warrant. Does 4A apply to S&S’s by US agents of property owned by non-residents located outside the US? Nope – D cannot object of 4A grounds (not the ‘people’ framers intended). Who is doing the search matters!
            – Budeau v. McDowell – 4A only limits gov’t action, does not reach private S&S’s
            – No violation if a landlord searches tenant’s home, airline EE searches luggage
            – DOES cover police involvement (office asks LL to search T’s belongings)
Exclusionary Rule – If the police violate D’s constitutional rights in obtaining evidence the prosecution may not use that evidence to prove D’s guilt at trial. Must be:
1. State action
2. Defendant’s right must be violated (standing)
3. Can’t introduce at trial during case in chief
– Yes during grand jury
– Possible it could come in on rebuttal if defense opens the door
Rationale for Exclusionary Rule – To deter – to compel respect for the Constitutional guaranty in the only effectively available way – by removing the incentive to disregard it.
Weeks v. US: D was arrested, PO’s went to his house, S&S’d possessions without warrant. Found evidence that was used to convict him of transporting lottery tickets through the mail.  After his conviction, Weeks petitioned for the return of his possessions that had been seized by the police.
Holding: S&S was unconstitutional & refusal to return Weeks’ items on behalf of the government also violated 4A, since the possessions had been obtained illegally. Weeks applied only to fed’l gov’t.
Wolf v. Colorado: Illegal S&S obtained abortion doctor’s patient list, PO’s interrogated patients for evidence.
Court: 4A doesn't specifically require exclusion as the remedy for illegally obtained evidence. Other civil remedies exist – here 14A does not require states to match the Bill of Rights.
**Later overturned by Mapp v. OH
Rochin v. CA: W/o warrant PO’s bust in his home, he swallows 2 pills, they try to forcibly get them out but can’t, take him to a hospital where they put a tube in to get them out.
Court: CA SC struck down the conviction – the brutality of the means to extract the evidence “shocks the conscience” and clearly violates the due process guaranteed by 14A.
Mapp v. Ohio: Illegal S&S (and also violations of 5A). Mapp argued, “the methods employed to obtain the evidence were such as to offend a sense of justice.”
Court: 4A says nothing about the remedy for an illegal search and seizure; exclusion only became the Federal standard after Weeks. BUT  “since 4A's right of privacy has been declared enforceable against the States through 14A DPC, it’s enforceable v. them by same sanction of exclusion as is used against the Fed’l Gov’t.”
Note: Other suggested remedies for 4A violations, and found that they were unworkable (civil lawsuits require money to file, convicted felons likely could not prevail v. police)
Subjective: Did the defendant know that outsiders were going to acquire this information in just the way the government ended up doing? If so, no subjective expectation of privacy. Need more than a “hope of privacy”
Reasonableness: 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 police technique. (Harlan)
(1) Define specifically the “expectation of privacy” that is at stake.
·         Keep it specific (…privacy in his backyard is too broad)
·         Activity in terms of the specific law enforcement activity
(2) Decide whether the defendant subjectively entertained that expectation.
·         Usually criminals intend and entertain a subjective privacy (usually not at issue)
·         Key ?: Did D know that outsiders were going to acquire this information in just the way that the government ended up doing? If so, he lacks any subjective expectation of privacy
·         Defined by what the public could do or acquire in relation to law enforcement
·         If accessible to outsiders (bank records, phone records) then no subjective expectation
(3) Decide if expectation is one that society is prepared to recognize as reasonable or “justifiable.”
Balance: Individual sense of security/privacy v. utility of law enforcement conduct. Factors include:
(1) Degree to which the matter is already exposed to members of the public
– What matters is what people ACTUALLY do, not what they can do
– REAL EXPOSURE not theoretical exposure
(2) The intimacy of what is revealed
– What is revealed generally? In foresight, what is likely to be found?
– What uses to which the individual has put a location to?
(3) Countervailing government interest
– What is the government trying to prevent?
– Balance against: societal feeling that certain areas deserve the most scrupulous protection
(4) Degree this has been traditionally protected from government intrusion
– What does the 4th Amendment say?
– What was the intention of the framers of the 4th Amendment?
“[T]he question [whether the expectation of privacy is reasonable] must … be answered by 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.”  Harlan Dissent in U.S. v. White
à If technology-based, don’t forget about the Kyllo
Katz v. United States: Katz was a gambler who used a public phone booth to place bets with his bookies. The FBI had placed a warrantless wiretap on the phone and was recording his conversations.
Old trespass test: not a search unless: 1. gov’t meant to find something or obtain information; 2. the activity intruded upon a “constitutionally protected area” and 3. the intrusion took the form of a physical trespass  
Court: if an individual can justifiably expect that his conversation would remain private, their conversation is protected from unreasonable search and seizure by 4A. 4A is designed to “protect people, not places.” 4A can still be violated even if there is no physical intrusion of a 'constitutionally protected area'.
– Whatever a citizen “seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Aka a (subjective) reasonable expectation of privacy.
– If you expose statements to an outsider, you’ve relinquished your expectation of privacy. But ‘exposing’ them to someone on the other end of the line that you know means you keep it private (insider v. outsider distinction)
J. Harlan Concur: twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy; and second, that the expectation be one that society is prepared to recognize as 'reasonable.'”
Notes: Subjective test is usually a normative question (morally aspirational) although sometimes treated as an anthropological question: “This question must … be answered by 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, J., dissenting) 
U.S. v. White: Participant Monitoring – NO SEARCH
Facts: Warrantless recording of conversations with informant.
Holding: 4A does not protect those who trust someone who turns out to be a police informant.
– If you admit to people that you are committing crimes, you have no expectation of privacy and therefore it is your own fault if they squeal on you to the police (aka the third-party disclosure rule).
Katz analysis: 1. What is the ‘expectation of privacy’ at stake – that the police aren’t recording your convo with your friend’s consent.
2. Did the defendant subjectively entertain that expectation? Yes of course.
3. Was the expectation one that society is prepared to recognize as reasonable or justifiable? No.  
            – Reasonableness factors: (1) Degree to which matter is already exposed to outsiders, (2) intimacy of what’s revealed by the investigative technique; (3) tradition; (4) countervailing government interest
Smith v. Maryland: Pen Registers – NO SEARCH
Facts: Warrantless pen register used to determine who was calling victim.  
Holding: Robber’s 4A rights were not violated. He did not have a legitimate expectation of privacy regarding the numbers he dialed on his phone because those numbers were automatically turned over to a 3P, the phone company.
Notes: When you convey information to the phone company you’ve relinquished your expectation of privacy
White: Information exposed to an insider isn’t private if the insider consents to government access.
Katz: Information knowingly exposed to an outsider isn’t private, period.
Katz Applications
Pen registers: NOT considered a search (under either prong – subjective or reasonable)
– Matter is already exposed to your phone company
– Information was not terribly intimate considering it was just the outgoing numbers (dissent disagrees – outgoing numbers itself can reveal most intimate details of your life)
– Tradition: switchboard operators started rich tradition of c

ation occurs when police use microphone attached to a spike which was driven through the wall of the house
U.S. v. Jones: Warrantless use of tracking device on Jones's vehicle to monitor its movements on public streets.
Holding: The installation, without a warrant, was an unlawful search under 4A.
– The Katz “reasonable expectation of privacy” standard did not repudiate that understanding, but rather added to it.  The Knotts and Karo beeper cases are distinguishable because there, the electronic device was not placed on property already possessed by D—thus, only the Katz test was applicable.  Here, the police physically encroached on a protected area to gather information.
What about GPS device on license plate? Maybe not tressapatory because the state owns your license plates
GPS Monitoring Under the Katz Test
1.      Define specifically the expectation of privacy that is at stake
Your whereabouts are private and sensitive information through a surreptitious device over a 28-day period
2.      Decide whether the defendant subjectively entertained that expectation
All carry cell phones that emit the same GPS signal à MAYBE
3.      Decide whether the expectation is one that society is prepared to recognize as reasonable or justifiable
– Degree to which the matter is already exposed
– His movements are public but over a full 28 days? Even if every part of the trip is exposed to some part of the public, that doesn’t mean it’s not an additional exposure when someone gets to see ‘the whole mosaic’
– Does efficiency matter? Can do this via tailing – BUT “We have never equated police efficiency with unconstitutionality, and we decline to do so now” United States v. Knotts (1983)
4. The intimacy of what is revealed
– Very intimate information: All sorts of associations are brought out
– Someone’s entire life can be ascertained based on their whereabouts
5. Countervailing Government interest
– Huge à preventing drug trafficking
6. History/Tradition of protection               
U.S. v. Karo: DEA put a tracking device in a can of ether (used to make illegal drugs). The police had obtained a warrant to put the tracking device in the can that ended up in a home.
Holding: The use of the tracking device to get information from inside the home was a violation of 4A.  The installation of the tracking device was not a search. The ether was not in the possession of Karo when the tracking device was installed. It was also installed with the permission of the owner.  
– 4A violated when police used device to obtain information unobtainable by visual surveillance. POs used the tracking device to determine what was occurring inside of a house. That constituted a violation of 4A because they didn't have a legitimate probable cause and so the warrant was invalid.
– The visual evidence that the police had obtained by following Karo and his cohorts around was enough probable cause to sustain the search the house, so therefore the motion to suppress was denied.
Notes:  “meaningful interference with possessory interests” (can’t be de minimus, must be meaningful)
Soldal v. Cook County – Disconnecting a trailer home from its base and towing it away qualifies as a “seizure.” 
Illinois v. McArthur – Officers seized home by forbidding home occupants from entering.
Florida v. Jardines: Miami PD received an unverified “crime stoppers” tip that a house was being used to grow pot. 2 PO’s + drug dog went, dog signaled + detective smelled pot. Used that info to get search warrant.
Holding: The front porch of a home is part of the home itself for 4A purposes. Entering a person’s porch for the purposes of conducting a search requires a broader license than the one commonly given to the general public.
– Without such a license, the police officers were conducting an unlawful search in violation of 4A. Police have to knock on the door to give you that implied license
Ingram Hypo: PO has suspicion of a meth den.  He walked up and looked through a window and saw HEET.   
A: It’s true that PO subjective intent is irrelevant. But whether a search is objectively reasonably depends upon whether the officers had an implied license to enter the porch, which in turn depends upon the purpose for which they entered. Here, their behavior objectively reveals a purpose to conduct a search, which is not what anyone would think he had license to do.”