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

Fall 2006
Professor Tomkovicz

Criminal Procedure: Investigation

Searches and Seizures

Introductory Material

o 4th Amendment: “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 persons or things to be seized.”
o Applies to both searches and arrests
§ Where a warrant is issued—probable cause is required
§ A warrant is usually required before a search or seizure unless there are “exigent circumstances.”
§ An arrest warrant, by contrast is usually not constitutionally required.
§ The 4th Amendment DOES NOT require that a warrantless search be based only upon “probable cause.” → ie stop and frisks.
§ Applies in two situations:
· Before a judge or magistrate may issue a warrant for search or arrest
· Before the police may make a warrantless search or arrest (only under certain circumstances).
§ Requirements of probable cause:
· To arrest→ it must be reasonably likely…
o A violation of the law has been committed and
o The person to be arrested has committed the violation
· To search→ it must be reasonably likely…
o The specific items to be searched for are connected with criminal activities
o And these items will be found in the place to be searched.

The “Threshold” of The 14th Amendment Right to be Secure Against Searches→ has there been a search?

· Factors that are relevant to assessing the “reasonableness” of a privacy expectation:
o Voluntary disclosure to a third party cooperating with the government
o Public exposure.
o No privacy interest in activities.
o Either Nothing legitimate will be learned (drug sniffing dog) Or virtually certain that nothing will be learned AKA Failure to take precautions to safeguard privacy.
· “Search” Cases:
o Boyd v. United States(1886)— At issue was an order requiring an individual to produce business invoices. The Court found that it 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”.
o Olmstead v. United States (1928)—departed from Boyd. Wiretapping from outside a building was not a search because there was no “actual physical invasion” and no trespass upon a protected location.
· Voluntary disclosure to a third party cooperating with the government → Informants
o On Lee v. United States(1952)—an informant’s electronic transmission was not a search because the speaker was “talking confidentially and indiscreetly with one he trusted and was overheard” and the speakers consent to talk to the informant precluded a trespass.
o Lopez v. United States (1963)—no violation of 4th Amendment rights because the suspect consented to the agent’s presence in his office and willingly spoke to the agent.
o Hoffa v. United States (1966)—informant who listened to reported and testified about Hoffa’s remarks did not search because no “interest legitimately protected by the 4th Amendment was involved.” He had not relied on the security of the hotel room, but his misplaced confidence in the informant.
· Voluntary disclosure to a third party cooperating with the government → Electronic Eavesdropping without Informants:
o Goldman v. United States (1942)—the government did not invade 4th Amendment by placing a detectaphone against an outer wall and listening to a conversation inside a building.
o Silverman v. United States (1964)—4th Amendment was violated when a “spike mike” was inserted in a party wall and picked up conversations passing through heating ducts—even though not a “trespass” it was a “physical invasion” harkening back to Olmstead.
o Clinton v. Virginia (1964)—the Court found that the government attached a listening device to a wall by means that caused a thumbtack sized penetration—it had searched within the meaning of the 4th Amendment.
o *Katz v. United States→ FBI agents attached an electronic listening device to the outside of a public phone booth and used the information from his end of the conversation in a trial against the D. This violated D’s 4th Amendment Rights because it violated the privacy upon which he justifiably relied. The “trespass” doctrine of Olmstead and Goldman is no longer controlling, so the 4th Amendment does not turn on physical invasion. But it is not saying that all privacy violations are 4th Amendment violations are search and seizures.
§ This change is keeping with the purpose of the Constitution. The purpose is to protect privacy—privacy should not turn on a thumbtack-sized hole.
§ This goes beyond eavesdropping from the time of the forefathers. There is no way to know with current technology if you are putting yourself at risk.
§ The 4th Amendment protects people not places, so it doesn’t matter whether the phone booth is a “constitutionally protected place”
§ Also departs from Olmstead in that an item does not have to be tangible to be subject to a search/seizure. It can also be statements.—this was established in Silverman
· Voluntary disclosure to a third party cooperating with the government→ Electronic Eavesdropping with Informants:
o *United States v. White→ The D was convicted by use of information that was communicated to an informant through radio transmission. The conversation took place in the informant’s kitchen (had it been in D’s kitchen, it would have been a search). Katz does not apply. Evidence that is received by radio transmission from an informant is admissible because it is not a search.
§ This is distinguishable from Katz because of the use and cooperation of someone whom D was telling.
§ Government does not have to show anything before it can get an informant to wear a wire. BUT if the friend drops the wire in the couch and the state overhears conversation between non-cooperaters, that is a search under Katz.
§ Assumption of the risk.
o *Smith v. Maryland→Installation and use of a pen register is not a “search” within the meaning of the 4th Amendment because there is no expectation of privacy when one dials phone numbers and transmits that information to a phone company.
§ Test: whether there is a justifiable, legitimate or reasonable expectation of privacy (which is determined by the following two questions):
· Whether he exhibited actual subjective expectation of privacy (This prong is never determinable)
· Whether society is prepared to recognize that expectation as reasonable. **this is the language from Harlan’s concurrence in Katz—but it was eventually adopted as the test .
§ Here—it is notan expectation society is prepared to view as reasonable because he voluntarily handed the information to a third party. There is “no legitimate expectation of privacy in information he voluntarily turns over to third parties”— if the 3rd party willingly hand that information over.
§ The emphasis does not turn on the fact that the content was minimal.
§ The phone company was acting as an agent of the police—so it was “state action” ** You can be a temporary state actor.
§ Subjective expectation might not matter in very rare circumstances (for example, if the government made a mass warning that everyone was subject to a search).
· Public Exposure
o *California v. Ciraolo: Police got an anonymous tip that D was growing marijuana in his backyard. A 12-foot fence blocked the marijuana from view. Police secured a plane and took pictures with a 35 mil. camera. There is no reasonable expectation of privacy from an aerial view of plants in one’s yard that are guarded from view by a 12 foot fence, therefore there is no search.
§ Test→ Smith v. Maryland
· Public view from airplane—which are “routine.”
· Purpose for the plane and experts viewing the plants doesn’t matter because they were in plain site.
§ Dissent→ “could” and “does” are different things.
o Florida v. Riley – if it is known the public is at that planes are at that altitude sufficiently routinely—then its not a search. Since there are different legal flight limits for helicopters and planes—it depends on the means.
§ If there is a tree near your yard—it depends on whether the public regularly climbs it according to thes

) or that it was 2) drugs. If it is (1) there is no privacy loss. If it is (2), it is illegitimate information—no one can legitimately expect privacy in drugs. There’s no legitimate expectation of privacy.
o Illinois v. Andreas—the government reopened a large container which had previously been legitimately searched at the border. The reopening was not a search because there was no “substantial likelihood” that the contents had changed.
o United States v. Karo—the mere transfer to an individual of a container to which a “beeper” had been attached was not a search.

Unreasonableness and the Probable Cause Requirement→ is the search reasonable/ supported by probable cause?

o Protection under the 4th Amendment is in two parts:
§ The unreasonable clause—vague and deceptively simple
§ The warrant clause—more specific in content and narrower in scope. **probable cause is only mentioned in the warrant clause. But—it’s understood as a norm for warrantless searches as well.
o Probable cause is an essential precondition for a valid warrant to search and seize.
o Probably cause for a search is not the same as probable cause for an arrest.
§ Probable Cause for an arrest requires a certain quantum of likelihood that:*
· The particular individual
· Has committed or is committing a particular offense
§ Probable Cause for a search requires a certain quantum of likelihood that:*
· Something that is properly subject to seizure by the government, i.e. contraband or fruits, instrumentalities, or evidence of a crime,
· Is presently (now)
· In the specific place to be searched
o 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 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.” United States v. Garza-Hernandez
o There need not be certainty, but “sufficient likelihood” to establish probable cause.
o Issues with Searches:
§ Staleness: there once was enough probability. If you wait six months, that probability no longer exists. The mere passage of time drops the probability.
§ Hearsay: you may rely on hearsay. But how do you determine whether hearsay supports the probable cause standard? This question has been a struggle.
· Draper v. United States→ The Court dismissed a D’s claim that hearsay could not be the basis for finding probable cause because the hearsay came from a person whose information had been found accurate and reliable. Other information regarding the D was corroborated by the informant before the D was searched (the clothes he would be wearing, the pace he was walking, the time and location he would arrive). So there were “reasonable grounds” to believe the rest of his information was true.
· Aguilar v. Texas→ Test: while probable cause can come from hearsay, the information from a “reliable source” was inadequate because…
o There was no “underlying circumstances” necessary to enable the magistrate to judge validity. Informant doesn’t say how he got his information.
o Officers offered no support that the information was reliable or that the informant was credible. Officer doesn’t provide facts which show why he believes the informant.