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Criminal Procedure
University of Iowa School of Law
Raymond, Margaret

Criminal Investigation Outline
 
             I.     Searches and Seizures
A.    Introduction
                                    1.      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 particularily describing the place to be searches, and the persons or things to be seized.”
                                    2.      These are the “unreasonableness” and “warrants” clauses.
a.      In order to avoid these limitations, prosecutors attempt to characterize investigative actions not as searches or seizures.
B.     What Constitutes a Search Under the 4th Amendment: The Threshhold of the 4th Amendment
                                    1.      Introduction
a.      Early Cases
i.        Boyd v. United States (1886): A search exists where the state forces from someone evidence against himself.
ii.      Olmstead v. United States (1928): A search only exists where there is an actual physical invasion.
b.      1952-1966: Undercover Agents cases
i.        On Lee v. United States (1952): An informants electronic transmission of statements to a nearby law enforcement officer do not amount to a search because (a) the speaker’s consent to the presence of the informant precluded a trespass, and (b) even though the speaker was speaking confidentially and indiscreetly with one he trusted, he was overheard.
ii.      Lopez v. United States (1963): Risk analysis approach: Where a party consents to the entrance of a party wearing a wire to enter his office, he takes the risk of recording and reproduction of the conversation for use in court, and so such a transmission is not a search within the confines of the 4th amendment.
iii.    Hoffa v. United States (1966): An informant that listens to, reported and testifies about inculpatory remarks did not search within the meaning of the 4th amendment.
c.       Electronic Eavesdropping without Informants
i.        Goldman v. United States (1942): There has not been a search where the government merely places a detectaphone against an outer wall and listens to conversations within the building.
ii.      Silverman v. United States (1961): There has been a search for 4th amendment purposes where the government sticks a spike mike into a wall in order to pick up conversations through heating ducts. The physical intrusion was deemed sufficient.
iii.    Clinton v. Virginia (1964): Even by merely attaching a listening device to a wall by means that caused a thumb tack sized penetration, the government had searcged within the meaning of the fourteenth amendment.
                                    2.      The Modern Rule: Katz and Beyond
a.      Reasonable Expectation of Privacy Doctrine: The 4th amendment generally applies only where (a) a person has exhibited an actual (subjective) expectation of privacy, and (b) that the expectation is one that society is prepared to recognize as reasonable (see Harlan concurring that later became law). Katz v. U.S. (1967) (agents use outside equipment to listen inside phone booth).
i.        Rationale: The 4th amendment protects people, not places, and thus it matters only that the party exhibited an expectation of privacy that was reasonable.
                                                                               (a).      Because the 4th amendment applies to people and not places, it cannot turn on the existence or absence of a physical invasion. The old trespass doctrine is not applicable any longer.
ii.      Katz Overruled Olmstead and Goldman notion that whether the action constitutes a search deals only with whether there has been a physical penetration of tangible things.
                                                                               (a).      The government’s activities here constituted a search and seizure.
b.      Expectations of privacy concerning conversations with others not reasonable: Where the other participant to the conversation invites the surveillance, it is not a search because you do not have a reasonable expectation that the conversation will be kept private. United States v. White (1971) (government informant wears a wire).
i.        The 4th amendment does not protect an individual from having his conversation with another individual transmitted and recorded which are later offered in evidence to prove the state’s case. Individuals assume the risk that there conversations may be recorded by, transmitted to, or later described by the individuals with whom them willingly communicate.
ii.      Conversations with other people are not protected by the 4th amendment where a party to the conversation relays the information, even simultaneously via a wire. Thus, expectations about the privacy of a conversation with another party are not reasonable and will not be upheld.
                                                                               (a).      Compare Katz: Katz there was reasonable in believing the conversation on his end in the phone booth was private and would not be overheard.
c.       Expectations of privacy concerning information given to 3rd parties not reasonable: Information that has been shared with a 3rd party cannot reasonably be considered private, and thus, if that party reveals that information to the government it is not a search. Smith v. Maryland (1979) (police use info from pen register to make arrest).
i.        As a party has no legitimate expectation of privacy in information he voluntarily turns over to private third parties, a party that makes phone calls via a phone company entertains no reasonable expectation of privacy and cannot claim protection under the 4th amendment.
ii.      Possible Limitation on rule: The Court notes the possibility that in situations where an individual’s subjective expectations had been conditioned to believe in influences foreign to 4th amendment freedoms, a normative inquiry would be proper (as opposed to the Katz test.
d.      No reasonable expectations of privacy about things the public could see: Essentially, if the item claime

or things to be seized.”
a.      This Means: The officer must give a sworn statement to a magistrate, in which he describes the place to be searched and the persons or things to be seized in order to establish probable cause to believe that a crime is being or has recently been committed.
i.        In the sworn statement, the police must set out how they came to know what they know, and why they think that what they know indicates a degree of certainty of illegal behavior.
b.      What the police can seize: The police can seize instrumentalities and fruits of the crime, contraband, and evidence of a crime.
                                    2.      Probable Cause in general: Requires only a sufficient likelihood, not certainty. Thus, probable cause still exists if the conclusions drawn turn out to have been mistaken.
a.      Where applies: The requirement of “probable cause” applies to two different situation: (1) before a judge or magistrate ay issue a warrant for a search or arrest she must be satisfied that probable cause to do so exists; and (2) before the police may make a warrantless search or arrest (with certain exceptions)., the officer must have probable cause for that search or arrest.
b.      Degree of certainty: A fair probability. See Gates. This is not the same as the “more likely than not” or 51% standard.
i.        All that is necessary is evidence that there is a fair probability of criminal enterprise, even though there may be a chance that the activities in question are completely legitimate.
c.       Probable cause to arrest:
i.        For there to be probable cause to arrest a person, it must be reasonably likely that:
                                                                               (a).      A violation of the law has been committed; and
                                                                               (b).      The person to be arrested committed the violation. See Brinegar v. United States(1949).
d.      Probable cause to search:
i.        For there to be probable cause to search particular premises, it must be reasonably likely that:
                                                                               (a).      The specific items to be searched for are connected with criminal activities; and
                                                                               (b).      These items will presently be found in the place to be searched. United States v. Garza-Hernandez.