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Criminal Procedure
University of Iowa School of Law
Raymond, Margaret

Amendment IV
 
The right of the people to be secure in their 1) persons, 2) houses, 3)papers, and 4)effects, against Unreasonable A) Searches and B) Seizure, shall no be violated, and no Warrants shall issue, but upon PROBABLE CAUSE, supported by 1) Oath or affirmation, and 2) particularly describing a) the place to be searched, and b) the persons c) or things to be seized. 
 
unwarranted Searches
 
Katz v United States: Telephone Booth Privacy (Electronic surveillance is a search)
 
Defendant was convicted of transmitting wagering information by telephone in violation of a federal statute.   FBI agents had attached an electronic listening and recording device to the outside of the public telephone booth where he had placed his calls.
 
The Supreme Court did not allow this type of search for two reason in Harlan’s Concurrence, finding that a person in a telephone booth could rely upon the protection of U.S. Const. amend. IV.
 
Court Majority Ruling: 1) Occupying a telephone booth and 2) Shut the door behind him, 3) and paid the toll that permitted him to place a call was entitled to assume that the words he uttered into the mouthpiece would not be broadcast to the world.  The Court determined that the government agents ignored the procedure of antecedent justification, which was a constitutional precondition of the kind of electronic surveillance involved in the case.  
 
Harlan’s Dissent Requires: 
–      “Subjective prong”: The government action must offend the citizen’s subjective manifestation of a privacy interest.
–     “Objective prong”: The privacy interest must be one that society is prepared to accept as legitimate.
 
United States v. White: Giving incriminating statements to a snitch is allowed. (does not violate Katz)
Facts: The police want to place the testimony of the agent into record because witness fell through. The agent heard everything through a listening device and was in the kitchen closet.
 
Opinion: If the conduct without use of electronics does not violate the justifiable expectation of constitutional privacy, using electronic equipment does not change this.  
·         Based primarily off of Hoffa v U.S.:
o   That however strongly a defendant may trust a colleague, his expectation of confidence with his colleague is not protected by 4th Amendment. 
 
Smith v. Maryland: Preregisters are not searches under 4th amendment. (Government cannot announce away 4th amendment rights under subjective test)
 
·         Pen Registers are allowed (not a search)
o   Pen registers are devices that record the numbers dialed from a phone.
o   Pen registers do not record the content of a conversation.
o   Telephone users have no expectation of privacy regarding the numbers dialed from their telephone since telephone companies record dialed numbers in order to bill their customers.
o   Therefore, the use of pen registers does not violated the Fourth Amendment.
·         Subjective Test Waiving
o   If the police announced that warrantless searches were now permissible. The normative test would still not allow this intrusion if the substantive test did not allow.
 
CA v Ciraolo: Fly over is allowable to see evidence when a person has built a fence around their property.
The “curtilage” does not have the same expectation of privacy as the home.  
Definition of curtilage: Boyd v. U.S. 
US v Dunn factor curilege test
The area’s proximity to the house
The existence of an enclosure around the area
The nature of the use to which the area is put
The precautions taken to exclude others from the area. 
Flying over it is allowable to see for observations. (Flight at 1000 ft allowed)
Based on the fact that an officer can stand inside someone’s house with their permission and look over the fence through a neighbor’s window. (Allowed)
There might be a height requirement on Navigable Airspace. 400 ft. or more.
400 ft limitation comes from Florida v Riley
 
Hester v US: Searching an open field is allowable .
·         No special protection under the fourth amendment.
 
U.S. v Knotts: attaching a beeper to a container to track its movement is completely allowed because the it could be obtained with just “visual surveillance from a public place”.  
·         Nothing in the 4th amendment stops a person from augmenting there senses with the latest science and technology. 
 
Bonds v US: Soft luggage cannot be squeezed on the way out by police officers.
Two questions:
·         By his conduct was there a subjective reason to expect privacy
o   Did he wish to preserve something as private Smith v Maryland
o   Opaque bag above seat was meant to preserve privacy
·         Is the individuals expectation in privacy “one that society is prepared to recognize as reasonable.”
o   Does not expect the bag to be handled in an exploratory manner. 
o   This exploratory manner is what sets this outside the realm of things that can be searched.
 
Kyllo v U.S. : Thermal imagers reveal to much about the inner workings of the house and are not a reasonable search. 
·         Scalia in this opinion is returning to what would have been possible at the time of the framers. 
o   If a person would have had to trespass to obtain entrance into the house without technology then it is an illegal search.
o   If the technology is in general use this does not apply.  
·         The intimate information guidelines are irregular. 
o   There is no way of actually looking into this information without using the device.  
·         There is no di

. (unconstitutional)
o    A part of the warrant was not described “what was to be searched for”
§ Particularity requirement limits the scope of the search.  
§ Can’t look in drawers for large screen TV.
o   Could attach the Warrant to the affidavit. 
 
Franks v Deleware: Permissible to challenge the truthfulness of statements made in an affidavit. Knowingly, intentionally, or with reckless disregard making false statements makes the warrant void. Preponderance of the evidence standard is all that is needed.  
 
Shadwick v Tampa: Issuers of warrants need not be trained lawyers. “capable of determining if probable cause exists.”  
 
Unreasonableness and the Probable Cause the Requirement to Search
 
Basics:
Probable cause to search “exists if ‘the facts and circumstances within the officers’ knowledge and of which they have reasonably trustworthy information are sufficient in the themselves to warrant a man of reasonable caution in the belief that’ an item subject to seizure will be found thin the place to be searched.”   US. v. Garza-hernandez, Brinegar v. United States.
A showing of probable cause is not undermined if the conclusions drawn turn out, in fact to have been mistaken. Hill v CA
Time is a factor.   Different kinds of evidence and information go stale at different times. 
Probable cause is a lesser standard when a warrant is asked for then an unwarranted search. U.S. v Ventresca
 
Probable Cause Based on Hearsay
 
Spinelli v U.S.: Had anonymous tip along with other observations that were benign. The gambler that owned two telephones and walked to his office every day. 
·         The warrant was inadequate because it failed to set forth the underlying circumstances necessary to enable the magistrate to independently judge the validity of the informant’s information.
·         Also the affiant-officers failed to support their claim that their informant was “credible” or his information “reliable.”
The bald assertion that defendant was “known” as a gambler was entitled to no weight in appraising the magistrate’s decision and the Court rejected as imprecise the “totality of circumstances” approach embraced by the court of appeals. Thus, the affidavit fell short of