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

Tomkovicz Criminal Procedure Investigation Fall 2012
Ch. 1: The Threshold of the 4th Amendment Right to be Secure Against Searches
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 particularly describing the place to be searched and the persons or things to be seized.”
2)      Electronic Eavesdropping
A)    Katz v. US [4] (P claimed the FBI attaching an electronic listening and recording device to the outside of the public telephone booth in which he was making calls, violated the 4th Amendment)
1)      Holding: The D’s activities in electronically listening to and recording the P’s words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a search and seizure within the meaning of the 4th Amendment
2)      Harlan’s concurrence in Katz: 2 Prong Test (became good law in Smith below)
(A)    Exhibit an actual (subjective) expectation of privacy; AND
(i)   Courts rarely pay attention to this prong
(B)    Whether the individual’s expectation of privacy is one that society is prepared to recognize as reasonable
3)      The 4th Amendment governs not only the seizure of tangible items, but extends as well to the recording of oral statements overheard without any technical trespass under local property law.
4)      The reach of the 4th Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure
B)    US v. White [9] (D convicted on drug transactions based on in part due to testimony from electronic eavesdropping via a government informant–Court held this was not a search)
1)      Distinguished from Katz: D did not in any way have a justifiable and constitutionally protected expectation that the person he was speaking to would not later reveal the conversation to the police, (so no justifiably relied upon privacy)
(A)    A person has no legitimate expectation of privacy in information he voluntarily turns over to third parties (turned over to informant in this case)
C)    Smith v. Maryland [14] (Police requested the telephone company to install a pen register at its central to record the numbers dialed from the phone at petitioner’s home–company = SA in case)
1)      Holding: The petitioner in all probability entertained no actual expectation of privacy in the phone numbers he dialed, and that, even if he did, his expectation was not legitimate.
(A)    Basic Test: invasion of a reasonable, legitimate, justifiable expectation of privacy
(i)   This is where the Court implemented Harlan’s concurrence in Katz
2)      Government obtained this information from the phone company who voluntarily turned it over (case is like Miller in that regard—D turned info over to phone company)
3)      Key Point: This was not a search so it is unregulated, therefore reasonableness is not required–Meaning the phone records can be requested whenever by whomever
3)      Curtilage/Open Fields
A)    California v. Ciraolo [21] (After receiving tip that D was growing pot in the backyard, police flew over in plane at 1,000 feet and saw weed, and then obtained a warrant; D had a fence)
1)      Holding: Although D’s yard was within the curtilage of his home, this did not bar police observation with the naked eye–because every member of the public could do this
(A)    Test used in this case: Knowingly exposed it to the public (2nd prong)
2)      4th Amendment protection of the home had never been extended to require cops to shield their eyes when passing by homes on public streets.
3)      The curtilage aspect has remained open:
(A)    It must be reasonable but you need less than you need for a home
(i)   Remember the test for the reasonableness is whether the government’s intrusion infringes upon the personal and societal values protected by the 4th Amendment.
4)      Future Case: says below 500 feet is a search for airplanes because airplanes must fly above 500 feet
(A)    Helicopters are different:
(i)   The exposure to the public is also important
(a)    Tree example: if kids climb the tree regularly—the public is routinely there
B)    Open Field Distinction: Privately owned land is not curtilage
1)      No 4th Amendment protection for open fields [26] because one cannot possess a reasonable expectation of privacy in open fields because: (quote from 26)
(A)    Summary of quote: Nothing private occurs in open fields (3rd factor)
2)      One issue that does arise is how to define the line between what is curtilage and what is open fields–4 factors the court looks to:
(A)    The area’s proximity to the home
(B)    The existence of an enclosure around the area
(C)    The nature of the use to which the area is put
(D)    The precautions taken to exclude others from the area
3)      Curtilage has protection but less than a home
4)      3 Key Factors So Far:
A)    Revealed to 3rd party by person to whom you voluntarily conveyed (White)
B)    Knowingly exposed it to the public (Ciraolo)
C)    Nothing private occurs in open fields
5)      Miscellaneous
A)     Bond v. US [28] (D’s bag on Greyhound Bus was squeezed by a Border Patrol agent and he felt a brick like thing, and got permission from D to open it; The thing was meth)
1)      Holding: The agent’s physical manipulation of petitioner’s bag violated the 4th Amendment–Still using Smith’s 2 Prong Test
2)      Physically invasive inspection is simply more intrusive than purely visual inspection. (what separates this case from Ciraolo)
(A)    It is not knowingly exposed to the public in that the public may touch the bag but does not squeeze it in such a manner
(i)   Ciraolo: Public is routinely there and could look down→  knowingly exposure
B)    Kyllo v. US [31] (Police expected that D was growing weed in house, and used thermal imaging from the street to infer whether heat lamp was inside the house)
1)      Holding: Where the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a search and presumptively unreasonable without a warrant.
(A)    In the home, the case law shows, all details are intimate details because the entire area is held safe from prying government eyes (everything is 4th Amendment protected)
(B)    The 4th Amendment draws a firm line at the entrance to the house
2)      Key Point: This case is limited to the home
C)    Governmental action does not threaten protected privacy interests if the government is almost certain to learn nothing at all, nothing of significance, or nothing legitimate (Jacobsen)       
1)      Fed Ex opened a suspicious package and there was a white powder, and Fed Ex repackaged it and called the cops
(A)    2 reasons this wasn’t a search when the cops reopened the package
(i)   It was virtually certain that by reopening the package the police wouldn’t learn anything new  (this applies to the opening of the package)
(ii) When you are possessing something that is illegitimate, one cannot have a legitimate privacy interest (this applies to the testing of the substance—either drugs or not—binary test)
(a)    Limited information: binary test can tell us only one of two things
1.      1 is illegitimate and the other is insignificant
(B)    Remember: it is not after the fact, it is before using the method
(i)   Compare this case to opening a suitcase—opening a suitcase could tell you multiple things
(a)    Drug sniffing dogs can only tell you one of 2 things—drugs or no drugs
D)    US v. Jones [CP 1] (Police officers installed GPS tracking device on D’s car and monitored its movements on public roads for 28 days)
1)      Holding: The officers’ actions qualified as a search under the 4th Amendment because the officers had physically occupied private property for the purpose of obtaining information
2)      The Katz reasonable expectation of privacy test was added to, not substituted for, the common law trespassory test
(A)    Neither a trespass upon a home or effect nor a Katz invasion of privacy constitutes a search unless it is done to obtain information; and the obtaining of information is not alone a search unless it is achieved by such a trespass or invasion of privacy.
(i)   Mere visual observation is not a search
(a)    If a group of agents did this, that would not be a search
3)      Relative short term monitoring of public movements does not violate reasonable expectations of privacy (the Court has not set a timeframe)
4)      The only thing that is not regulated today is nontrespassory and short term
(A)    Long term always is a search, trespassory or not
Chapter 2: Unreasonableness and the Probable Cause Requirement
1)      Central question: what role/function does the PROBABLE CAUSE requirement play in the 4th Amendment balance? “No warrants shall issue, but upon probable cause”
2)      A magistrate (low level judicial office) determines probable cause: one sided showing
A)    In warrantless case: judge will review after police do search and seizure
3)      Definitions of probable cause to arrest and to search
A)    Similarities: both judged by reasonable person standard and some level of probability required
B)    Differences in conclusions that must be supported: 1st portion is the same—“exists where 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…”
1)      Arrest Conclusions: (1) That person to be arrested (2) has committed/is committing offense
2)      Search Conclusions: (1) that object that is subject to government seizure: (2) is presently in the place to be searched (or will be at the time of the search)
4)      Probable cause does not require certainty, but only a sufficient likelihood.
A)    A showing of probable cause is not undermined if the conclusions drawn turn out to have been mistaken
5)      The Court has repeatedly indicated that the standard of probable cause for warrant-authorized searches and seizures is slightly less demanding than the standard of probable cause for warrantless searches and seizures.
6)      Probable cause does not go stale (does only in rare cases when subsequent information is developed)
A)    The passage of time alone does not undermine a showing of prob

zures and the resulting losses of property/possession to those items that there is PC to seize, and to prevent issuance of search warrants on loose, vague, or doubtful bases of fact.
5)      Execution of Warrants
A)    The 4th Amend. Does not explicitly address the execution of warrants by officers, but the general requirement that searches be reasonable has produced some specific requirements concerning execution
1)      Knock and Announce Requirement: element of reasonableness under the 4th Amend.
(A)    There is a presumption in favor of announcement prior to entry of a home to execute a warrant
(B)    Rationale: harms prevented by announcement prior to entry outweigh the government interests in entering unannounced
(C)    What an officer must do:
(i)   Announce their presence and authority or (their identity and purpose)
(ii) Must wait a reasonable period of time before entering to allow occupants to cooperate
(iii) Exceptions:
(a)    Don’t need to comply if they have a reasonable suspicion that announcing their presence would be dangerous, futile, or that it would inhibit the effective investigations of crime, by, for example, allowing the destruction of evidence
1.      No-knock; property damage/destruction; categorical; reasonable suspicion after announcement
2)      Scope: execution can be deemed unreasonable if officers exceed the scope of warrant
(A)    Excessiveness in places searched or time of search
(B)    Excessiveness due to 3rd party presence
6)      Seizures of Persons
A)    Summary from Watson [91] and Atwater [101]: An officer is permitted to arrest without a warrant for a misdemeanor or felony committed in his presence if there is probable cause as well as for a felony not committed in his presence if there is probable cause
1)      Court hasn’t spoke on minor offense committed outside of officer’s presence
2)      Out of presence but videotaped is up in the air
3)      The Court attempts to strike a reasonable 4th Amendment balance thus credits the government’s side with an essential interest in readily administrable rules
B)    Gerstein v. Pugh [100] (The Court held the 4th Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint on liberty following arrest)
1)      States must provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty, and that this determination must be made by a judicial officer either before or promptly after arrest.
2)      County of Riverside v. McLaughlin [101] (A jurisdiction that provides judicial determinations of probable cause within 48 hours of arrest will, as a general matter, comply with the promptness requirement and will be immune from systemic challenges)
(A)    An individual detained for a period shorter than 48 hours is still entitled to prove that the delay was unreasonable
(B)    When an arrested individual does not receive a probable cause determination within 48 hours, the burden shifts to the government to demonstrate the existence of a bona fide emergency or other extraordinary circumstances.
C)    Florence v. Board of Chosen Freeholders of County of Burlington [CP 4] (Whether the 4th allows prison authorities to require individuals arrested and detained for minor offenses to remove their clothing and expose the private areas of their bodies to close visual inspection as routine part of the jail intake process)
1)      Holding: Court upheld the policy, rejecting the contention that individualized suspicion was necessary as long as the person was being assigned to the general jail population.
(A)    Court also said there would be a narrow exemption which might restrict whether an arrestee whose detention has not yet been reviewed by a judicial officer, and who could otherwise be held in available facilities removed from the general population
(B)    Court stressed the importance of deference to correctional officials who are charged with maintaining the safety and security of their facilities
(C)    Court should intervene only when there is substantial evidence indicating that officials have exaggerated their response to the undoubted security imperatives involved in jail supervision