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

Criminal Procedure Outline

The 4th Amendment Right to Be Secure Against
Unreasonable Searches And Seizures

I. 4th Amendment Checklist

A. Does D have standing to raise a 4th Amendment challenge to the specific item of evidence in question?
B. Did the police activity in question implicate a person, house, paper or effect?
C. Did the police activity constitute a search and/or seizure?
D. Were the search and/or seizure reasonable or unreasonable?
1.Did the police have adequate grounds to conduct the search and/or seizure?
2.Did the police act on the basis of a search warrant and/or arrest warrant?
E. If yes to previous question, then ask:
1.Did the police conduct the search and/or seizure on the basis of a warrant later declared to be invalid?

If yes, then consider “good-faith” exception.

2.Is there evidence that is a fruit of the poisonous tree?

If yes, fruits of poisonous tree inadmissible subject to two exceptions: the inevitable discovery doctrine, and the attenuated-connection doctrine.

I. The Threshold Requirement – What is a search, what is a seizure?

1.4th Amendment protects against unreasonable searches and seizures. If the government activity is neither a “search” nor a “seizure,” it not regulated by the 4th Amendment and need not be reasonable
2.Interests Protected

Search – interest in maintaining personal privacy

Seizure – interest in:

i.Seizure of Person – Being free from governmental interference / physical disruption and inconvenience (look at stop and frisk) innocent person subject to a bodily seizure suffers a 4th Amendment intrusion even though he had nothing to hide
ii.Seizure of Property – Retaining possession of property
1.Rarely an issue because is obvious
3.There are 3 legitimate interests, held by all citizens that can be impaired by a government intrusion:

Keeping control over an use of his property – free from unreasonable seizures of property

Keeping information that may be personal or embarrassing private, even though not indicative of criminal activity

A. WHAT IS A SEARCH BEFORE KATZ – Needed physical intrusion in order to violate 4th Amendment
1.Boyd v. US

An order requiring an individual to produce business invoices was a search because it was “a material ingredient and effected the sole object and purpose of” a search, which was “forcing from a party evidence against himself.”

2.2 Classifications

False Friends: If you go about talking to people secrets it is foreseeable and as an assumption of risk; you don’t reasonably expect that when you tell somebody something that it is confidential and run the risk that they will tell.

i.On Lee v. US (1952): informant’s electronic transmission of statements to a nearby law enforcement officer was not a search because the speaker’s consent to the presence of the informant precluded a trespass and because the speaker was “talking confidentially and indiscreetly with one he trusted, and he was overheard.”
ii.Lopez v. US (1963): a known Internal Revenue Service agent’s recording of a bribe offer not a search because the suspect had consented to the agent’s presence in his office, and had taken the risk of recording and reproduction in court by willingly speaking to the agent.
iii.Hoffa v. US (1966): informant who listened to, reported, and testified about Hoffa’s inculpatory remarksdid not search because “no interest legitimately protected by the Fourth Amendment was involved.” Hoffa had not relied “upon the security of his hotel room,” for he had allowed the informant to enter and listen. Rather, he had relied “upon his misplaced confidence that the informant would not reveal his voluntary confided wrongdoing.

Physical Intrusions:

i.Olmstead v. US (1928): wiretapping from outside a building was not a search because, unlike the typical searches known to our Constitution’s Framers, there was no “actual physical invasion” and no trespass upon a protected location.
ii.Goldman v. US (1942): placing a “detecta-phone” against the outer wall and listening to conversations inside the building not a search.
iii.Silverman v. US (1961): inserting a “spike mike” into a “party wall” and picking up conversations passing through heating ducts was a search because the physical intrusion was sufficient to cross the constitutional threshold, even though it did not effect a technical trespass.
iv.Clinton v. Virginia (1964): attaching a listening device to a wall by means that caused a “thumbtack-sized” penetration was a search.

1.Katz v. United States (1967)

Facts: The government (P) thought that Katz (D) was transmitting by phone, from a public phone booth, information related to illegal gambling activities. Although no warrant was sought or received, officers intercepted and recorded D’s side of the phone conversations with an electronic listening device attached to the outside of the booth.

Issue: Whether listening and recording conversations with an electronic listening device attached to the outside of a public phone booth constitutes a “search and seizure,” subject to 4th A

, and White (D) while they were in the informer’s home without a warrant.
ii.Holding: 3rd party electronic monitoring without warrant violate the 4th Amendment. 4th Amendment offers no protection to a wrongdoer’s misplaced belief that one to whom he voluntarily confides will not reveal his words.
iii.Rationale: No justifiable and constitutionally protected expectation that a person with whom one is conversing will not then or later reveal the conversation to the police. Undercover agent may write down his conversations with a DF, and later testify concerning his recollection of such conversations without first obtaining a warrant. No different result if agent recorded or transmitted those conversations instead of immediately writing them down.
iv.Policy: Use of false friends is essential to the detection of otherwise inaccessible information about crime
v.Different from Katz: In Katz, the person on the other side of the phone was not the one who talked to the police, or was even an agent. The police recorded a conversation between Katz and a third person. If we say that the 4th Amendment offers no protection to a wrongdoer’s misplaced belief that one to whom he voluntarily confides will not reveal his words, it is the risk that the other person will turn to the police (or that the other person is an agent) what is not protected. Nevertheless it is a risk that is measured by the person’s judgment over the character of another. When police overhears conversations that were never revealed to it, it is depriving the individual of the chance to make the judgment and the risk is not that the person will turn to the police (or is an agent), but the risk is that the conversation will be heard by the police without justification.
vi.According to the professor, both, Katz and White, involve the same risk – that the other person would turn against them and that the government would get the information

Hoffa v. US (1966)– The minute you speak to another party you’ve lost control of those words. No reasonable expectation of privacy in the ideas or words conveyed to X because you are knowingly exposing these thoughts or ideas, therefore there is no search and no 4th amendment protection whatsoever.