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Criminal Procedure: Investigation
University of Illinois School of Law
Leipold, Andrew D.

Overview
v    Policy
Ø      4 core concepts:
§         Accuracy – not convicting innocent people + not letting guilty people go free
§         Fairness – respect for human dignity
§         Prevention of governmental overreaching – value individual rights
§         Efficiency
Ø      Sometimes these overlap, often they are at odds
§         Torture is unfair, and may produce inaccurate confessions
§         Notifying people they are suspects before talking to them is fair but may impede accuracy
§         Exclusionary rule prevents government overreaching but sometimes results in a less accurate outcome
§         Plea bargains increase efficiency but sometimes induce innocent people to plead guilty
v    Key Issues
Ø      Standing
§         Only the person whose personal 4A rights have been violated has a 4A claim – other people, against whom the evidence tends to prove guilt, are SOL
Ø      Exclusionary Rule
§         Generally, evidence obtained by gov’t in violation of 4A is inadmissible against the person whose 4A rights have been violated – other people are SOL (see: Standing)
Ø      Pretrial Adjudication
§         Judge makes all findings of fact and rulings of law re: 4A issues outside presence of jury
Ø      State Action
§         4A only prevents unreasonable gov’t action – if a private citizen (NOT at the request of a gov’t agent) searches a neighbor’s home, evidence obtained can legally be admitted at trial
§         “State” includes public teachers, housing inspectors, etc.
v    Dressler’s Checklist
Ø      Question: should a particular tangible object or oral communication, secured by gov’t agents, and which the prosecutor intends to introduce at trial against the defendant in the gov’t case-in-chief, be excluded because it was obtained in violation of 4A?
Ø      Does D have standing?
Ø      Did police activity implicate a “person, house, paper, or effect”?
Ø      Did police activity constitute a “search” or “seizure”?
§         Did police have adequate grounds to conduct S/S? (PC/ Reasonable suspicion/No suspicion exception)
§         Did police act on basis of warrant?
·         Did police obtain warrant in proper manner?
·         Was magistrate issuing warrant neutral and detached?
·         Was warrant in proper form – ie: does it meet particularity requirement?
·         Did police execute warrant properly?
Ø      If 4A implicated, D has standing, and police action “unreasonable,” then evidence probably excluded. BUT:
§         Did police conduct S/S on basis of warrant later declared invalid? (Good faith)
§         Is there evidence that is fruit of poisonous tree? (Subject to inevitability & attenuated connection doctrines)
4A Definitions
v      “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.”
Ø      Persons: includes clothing, etc.
Ø      Houses: includes apartments, hotels, detached garage (curtilage?), commercial structures, etc.
Ø      Effects: the “catch all” – includes cars, luggage, etc.
 
v    Search
Ø      Katz
§         4A protects people, not places. Specifically, it protects people’s “reasonable expectation of privacy”
·         Basically, 4A search = police gathering info that a person reasonably intends and expects to keep private
·         In Katz, a conversation was “searched” when police listened to it for information because the guy was in a closed phone booth where he had a reasonable expectation of privacy WRT people listening
§         Majority (Stewart) says “4A protects people, not places” or other kinds of property
·         What a person knowingly exposes to the public, even in his own home, is not protected by 4A
·         BUT: what a person seeks to preserve as private, even in a public area, may be protected by 4A
§         Concurrence (Harlan) actually lays out the “Katz Test” – two prongs:
1.       D has manifested a subjective expectation of privacy
¨       Expectation = more than just “hope of privacy”
¨       If you knowingly expose your actions to public, this prong is not met
Ø      This includes talking with anyone else – you run the risk that person is a “false friend” and will tell the cops what you said, or might be wearing a wire for cops, or might be a cop himself.
2.       That expectation is one that society is prepared to accept as reasonable
¨       Leipold says that the second prong is the whole ballgame, since almost all defendants expect privacy
¨       BUT: does reason

, though, just because they could have flown over.
¨       Unless they could lawfully do so – ex: by asking a neighbor to look out their upstairs window
Ø      Garbage
§         Greenwood: no reasonable expectation of privacy in garbage bags outside left outside the curtilage for pickup because such bags are readily accessible to kids, scavengers, animals, etc.
·         Again, this follows from the “knowingly exposed to public” rule of Katz
 
v    Seizure
Ø      Property
§         Seizure of tangible property occurs when there is a meaningful interference with a person’s possessory interest in that property
·         Karo: Attaching a beeper is not a “seizure” when the beeper is attached before person gets control of property, and there is no seizure even after the person gets control, either. 
¨       BUT: attaching a beeper when the person already has control? 
Ø      Person
§         When a cop, by means of (1) physical force OR (2) show of authority, has somehow restrained your liberty
§         Arrest = seizure (always)
 
v    Probable Cause
Ø      The facts and circumstances within the officer’s knowledge and of which they have reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that:
§         1) In the case of an arrest, an offense has been committed and the person to be arrested committed it
§         2) In the case of a search, a specifically described item subject to seizure will be found at the search location
§         Hearsay obviously OK (and typically the norm)
§         Can be shown to get a warrant, or in “warrantless” searches
·         In the case of warrantless searches, the judge should place a higher burden on the gov’t to prove PC
§         Things to keep in mind:
·         Who is supplying the information?
¨       Victims and other witnesses
¨       Police