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Constitutional Criminal Procedure
University of Iowa School of Law
Tomkovicz, James Joseph "Jim"

Prof. Tomkovicz – Spring 2008
I.        Threshold Question: Is there a Search?
a.       Search Standard: There’s a search when there is a violation of a reasonable expectation of privacy.
                                                              i.      Olmstead v. United States: Trespass Theory – Not a search unless there is a trespass – A wire tap did not constitute a search under the 4th A b/c there was no trespass (physical intrusion).
                                                            ii.      Katz v. U.S.: Overrules Olmstead. Feds putting a tape recorder on top of a phone booth to record K’s calls was a 4th A search.
1.      Stewart (Majority): 4th A “protects people not places” – rejects the trespass theory.
                                                          iii.            TEST (Harlan Concur): There is a search if/when gov’t action invades/violates a reasonable expectation of privacy2 PRONGS: (1) Subjective, actual expectation of privacy; (2) society is prepared to recognize that expectation as reasonable (objective)
1.      Here, it was reasonable for a person to expect privacy while in a phone booth and no one was around.
3.      Things exposed in plain view are not protected b/c the person is not exhibiting any expectation of privacy
4.      Conversations in public are not protected b/c it’s unreasonable to expect privacy in these situations.
5.      HYPO: 3 telephone booths. Put an agent in the middle one pretending to talk. Search? Different b/c you can see him and may have a lesser expectation of privacy – but there is NO graduated degree of privacy in Katz, it’s all or nothing (search or no search).
b.      AFTER KATZ: What is a “reasonable expectation of privacy”?
                                                              i.      US v. White: No search when gov’t agents recorded conversations b/t W and an informant w/ a radio transmitter. It’s unreasonable to think that any person you talk to couldn’t reveal what you say to him to the police (so any expectation of privacy in your conversations is unreasonable – note that the only difference b/t this and Katz is the presence of a person that is doing the recording).
                                                            ii.      Smith v. Maryland: Police use of a pen register to record the phone numbers S dialed was not a search.  No subjective expectation b/c you know someone is keeping a record of the numbers you dial (phone co. gives you a list of these numbers every month).  Also, any expectation of privacy would be unreasonable b/c once you turn info over to a 3rd party you assume the risk that they’ll go to the gov’t w/ this info.
                                                          iii.      US v. Ciraolo: Not a search to fly a plane 1000 feetover someone’s fenced in backyard – since flight through public airspace is common, anything in your yard is knowingly exposed to the public, and thus you can’t have a reasonable expectation of privacy in it.
1.      It’s never a search to look at something a person has knowingly exposed.
                                                          iv.      Florida v. Riley: Helicopter hovering 400 feet over a greenhouse to look through gaps in its roof was not a search – 400 is still w/in navigable airspace for helicopters (not for planes, however).
                                                            v.      Oliver v. US: OPEN FIELDS DOCTRINE – There is no expectation of privacy in an open field, even if it is private property, and thus there’s no search if police go/walk through an open field. There’s nothing in an open field deserving of any privacy protection.
1.      Contrast w/ curtilage: area intimately linked to the home where privacy expectations are most heightened and w/in which personal privacy is protected (area just around the house).
2.      US v. Dunn: Factors for determining where curtilage (and thus 4th A protection) begins: 1) Fence, 2) Proximity to home, 3) Other precautions/warnings (signs, solid fence blocking view (vs. picket fence)), 4) Use of the land (whether private things are happening in this area) – factors are looked at case by case (no bright line).
                                                          vi.            US v. Knotts: No search when police put an electronic tracking device on a container to monitor the movements of its possessor. Since anyone could have seen K’s movements w/ their own eyes, these movements were knowingly exposed to the public and thus K could have no reasonable expectation of privacy towards them.
1.      Just placing a beeper on a can isn’t a search b/c you don’t learn anything from just placing the beeper there.
                                                        vii.            Bond v. US: There was a search when officer squeezed B’s soft-sided luggage. Expectation of privacy in bag is reasonable b/c there’s no expectation of anyone firmly squeezing your luggage (“feeling the bag in an exploratory manner”). There is however an expectation of people softly touching or moving luggage. Different from Ciraolo b/c physical/tactile invasion is probably more intrusive than purely visual.
                                                      viii.      California v. Greenwood: No search when gov’t looked through G’s trash, after asking the trashman to hand them the garbage, which was placed at curb of shared driveway at a townhouse. Anyone could rummage through the trash on the curb so there’s no expectation of privacy (knowing exposure).
1.      Public pathways through curtilage (like a walkway to a front door) do not have a privacy expectation that would support something being a search – you expect people to walk on these things.
                                                          ix.      Kyllo v. US: There was a search when police used a thermal imager to discover a ‘hot wall’ in K’s home used to grow marijuana. The obtaining by sense-enhancing technology any info regarding the interior of the home that could not have been obtained otherwise w/o physical intrusion is a search, if the technology in question is not in general public use.
1.      All details in the home (even those concerning waste heat) are intimate details and thus deserving of protection.
2.      Dissent argued that 1) this is off the wall surveillance, which isn’t a search (sort of like knowing exposure – could pick up anything you found here w/ your senses), and 2) there’s no privacy interest in waste heat escaping from your house.
a.       Majority said this was through the wall surveillance and thus was a search.
                                                            x.            US v. Jacobsen: No search when the gov’t reopened a package previously opened by FedEx employees or when a chemical test was run on the package’s contents. No threat to a protected privacy interest if the gov’t is almost certain to learn nothing at all, nothing of significance or nothing legitimate.
1.      The reopening learned nothing at all – the officer was already told what the package contained by the FedEx people
2.      The chemical test could only indicate that the contents were drugs (nothing legit) or not drugs (nothing of significance)
                                                          xi.            US v. Karo: Tracking a transponder inside a personal residence where the transponder would no longer be in plain sight w/o a warrant is a violation of the 4th A.
                                                        xii.            9th Cir said there is no reasonable expectation of privacy in a National Forest (McIver).
                                                      xiii.            HYPO: Putting transponder on a car. Clearly NOT A SEARCH. Split on whether it’s a seizure. Majority of courts say no meaningful interference w/ the property, no seizure. Others say that people have right to keep others’ hands, tools & devices off their cars.
a.       PROBABLE CAUSE REQUIREMENT: Need probable cause to get a warrant
                                                              i.            Probable cause to arrest: Exists where the facts & circs w/in officers’ knowledge and of which they have reasonably trustworthy info are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed by the person to be arrested.
                                                            ii.            Probable cause to search: Exists where the facts & circs w/in the officers’ knowledge and of which they have reasonably trustworthy info are sufficient in themselves to warrant a man of reasonable caution in the belief that an item subject to seizure will be found in the place to be searched.
1.      W/o probable cause, a search or seizure is presumptively unreasonable
2.      Search warrant can go stale à as time passes it will become less and less likely that the item to be searched for will remain in the same location (arrest warrants do not go stale – passage of time has no effect on these; later facts can disprove that you committed the crime, however)
                                                          iii.            Probable Cause is NOT:
1.      Proof beyond a reasonable doubt (don’t need certainty, just a sufficient likelihood) – probably less than 50% likelihood in reality
2.      necessarily based on evidence that will be admissible in court (cops can rely on inadmissible evidence in finding probable cause)
3.      measured by a technical or rigid standard (involves probabilities & common sense)
4.      a standard that varies with severity or with level of intrusion
b.      Informants and Probable Cause
                                                              i.      Draper v. US: known informant

is too subjective
2.      To have a judicial evaluation by a neutral and detached magistrate.
3.      Cops are competitive and can’t be expected to reasonably circumscribe their searches on their own.
4.      Prevention of unjustified searches (even if many searches would have been validated by findings after the fact)
                                                            ii.            Search Warrants – Johnson v. US: Officers smelled opium, followed the scent to a hotel room.  Searched the hotel room.  Court found search unreasonable b/c officers didn’t have a warrant (per se search warrant requirement).
1.      Even if there were unquestionably PC, the search is still illegal w/o a warrant.
                                                          iii.            Arrest Warrants
1.      US v. Watson: Officers arrested W on probable cause he had stolen credit cards, but w/o a warrant. Arrest was ok: officers can make arrests w/o warrants if they have probable cause that the person being arrested is guilty of a felony.
a.       This covers all felonies, even those committed outside the presence of the officer.
b.      Gerstein: Judge must promptly determine PC either before (via warrant) or after arrest if there is any significant deprivation of liberty.
                                                                                                                                      i.      McLaughlin: “Prompt”: 48 hours or less is presumptively reasonable; more than 48 hours presumptively unreasonable.
1.      Can only exceed 48 hrs in emergency/ extraordinary circs
2.      Atwater v City of Lago Vista: A was pulled over for a seatbelt violation, arrested, and put in jail, even though violation only carried a fine as a penalty.  Arrest was valid: If officer has PC to believe a misdemeanor (or any other criminal offense, no matter how minor) was committed in his presence, he can arrest w/o warrant (w/ no restrictions, balancing, etc).
a.       Bright line rule was put in here for ease of administrability
b.      O’Connor wants an alternative rule where citation must be given for a fine only offense unless extenuating circs warrant a full arrest.
3.      It’s an open question whether a warrantless arrest can be made for a misdemeanor committed outside of cop’s presence (Watson suggests no).
d.      Issuance, Content, and Execution of Warrants
                                                              i.      US v. Grubbs: Search warrant had a triggering condition that only allowed the cops to search once G received his kiddy porn. When cops produced the warrant to G, it did not contain the triggering condition.
1.      Warrants w/ triggering conditions are not per se illegal, but before they can be issued there must be: 1) PC to believe the triggering event will occur, and 2) a fair probability that evidence of a crime will be found in the place to be searched if the triggering event occurs.
a.       Can only execute the search after the triggering event occurs
b.      Can wait long after the triggering event occurs as long as the warrant hasn’t gone stale (i.e. there’s still PC to believe the item is there)
2.      Warrants don’t need to include any triggering conditions associated w/ them; only things that must be particularly described are: 1) place to be searched, 2) person or things to be seized
a.       Officers not required to show the warrant to the person whose stuff is being searched before the search takes place
b.      Place requires at least an address
c.       Items to be seized must be described w/ as much accuracy as can be given
Andresen v. Maryland: Police got a warrant to search documents in lawyer’s office for evidence of fraud. A complained the warrant was overbroad b/c it contained language allowing a search for “other fruits, instrumentalities, and evidence of crime at this time unknown.” Court says warrant was ok, reading it to only authorize a search for evidence