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Criminal Procedure: Investigation
University of Iowa School of Law
Richardson, L. Song

Criminal Procedure: Investigation – Professor L. Song Richardson, Spring 2013, University of Iowa

The 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.”

-To whom does the 4th Am apply? àPeople: “A class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.”

-REMEMBER: 4th AM. only applies if there is a search or a seizure! Also, only applies to government action.

I. What is a search? IF search, then 4th Am. applies. If no search, NO 4th Am. protection.

a. 2 Part Test (Jones) Either/Or

i. If there is a trespass into a constitutionally protected area + information gathered, then search. Stated differently: Where the government physically occupies private property for the purpose of obtaining information, this is a search.

1. EX: Where police install a GPS on D’s vehicle and use it to monitor D’s movements, this is a search based on trespass.

ii. Katz Test (Harlan Concurring): Did the person have BOTH (1) a subjective expectation of privacy and (2) an expectation of privacy that society recognizes as reasonable (objective).

b. Examples Applying the Katz Test

i. WhiteàWhere government informant talks to D and transmits the information to the police, D has no objectively reasonable expectation of privacy in the content of the conversation, and thus No Search. When you talk to another person, you assume the risk that your “friend” will betray you.

1. The law treats “secret surveillance” of speech largely according to whether the surveying agent is visible or invisible to the subject. If visible, no search. Invisible, search.

ii. KatzàWhere Police plant a recording device on top of a phone booth unbeknownst to D, D has both a subjective and objectively reasonable expectation of privacy. Thus, search.

iii. SmithàInstallation and use of a pen register constitutes a search. D did not have either a subjective expectation of privacy nor an objectively reasonable expectation of privacy that the numbers he dialed would stay private. This is because the numbers have to go to a 3rd party in order to complete the connection.

1. Distinguish KatzàIn Katz, police were able to obtain the contents of the conversation; here only the number dialed. In Katz, D had objectively reasonable and subjective expectation that the contents of conversation would be private. Here, no.

iv. PlaceàA canine sniff by a well-trained narcotics dog is NOT a search. A person has no reasonable expectation of privacy in possessing contraband.

v. HesteràOpen Fields Doctrine: Police entry of an open field does NOT constitute a search. Open Field=Any unoccupied or undeveloped area outside the curtilage of the home.

1. Dunn à4 Factors to determine whether something is curtilage or open field: (1) Proximity to home; (2) Enclosed?; (3) Nature of its use; (4) Steps taken by resident to protect the area from observation by passerby

vi. CiraoloàAerial surveillance of curtilage is NOT a search. D has no reasonable expectation that the curtilage would not be viewed by someone flying overhead.

vii. GreenwoodàA person does not have a reasonable expectation of privacy in garbage left outside of the curtilage of the home for trash removal.

viii. KylloàWhen the government uses sense-enhancing technology to obtain information about the interior of the home, this is a search, at least where the technology in question is not generally used by the public.

ix. KnottsàBeepers placed in containers later purchased by D that monitored D’s movements driving from one place to another is NOT a search. No reasonable expectation of privacy in where one drives, because visual surveillance could achieve the same result

1. BUT SEE KaroàBeepers which helped police monitor D’s movements within a home is a Search. This is because it gives police information they couldn’t have gotten without being inside the home.

II. What is a Seizure of Tangible Property?

a. Police may seize what they have probable cause to believe is criminal Evidence

i. Contraband; Fruits of the crime; Instrumentalities used in commission of the crime; Mere evidence

b. Two Types of Seizures in regard to tangible property

i. Taking another’s property

ii. Meaningful interference with an individual’s possessory interest

c. Examples

i. KaroàWhere police place a beeper in a container before the Defendant has control over it, with the seller’s consent to do so, this is NOT a seizure because the presence of the beeper does not interfere with D’s possessory interest in any way.

ii. Where police take custody of a package which contains cocaine for 10 days in order to hide a beeper in itàSeizure or no? Meaningful interference with D’s possessory interest for 10 days.

iii. Police go in home and see turntable, and turn it upside down to get the serial number. NO Seizure, But is a SEARCH.

d. Seizure of a person/ArrestàCovered later, but just note this is a seizure.

III. Probable Cause

a. The 4th Am. prohibits unreasonable searches and seizures, which generally means that searches/seizures must be supported by probable cause. (Except in limited search/seizureàRS).

i. Probable cause is necessary for all Warrants and for Most warrantless searches

ii. Probable cause decision for judges issuing warrants is based on the 4 corners of the affidavit

iii. Warrants, founded on PC, must be supported by oath or affirmation of the person/officer applying for it.

1. D may challenge the truthfulness of statements made under oath in affidavit supporting a warrant if D makes a substantial preliminary showing that a false statement was knowingly, intentionally, or recklessly included by the Officer in affidavit (Franks).

b. Probable Cause

i. For Arrest: The facts and circumstances within the officer’s 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 offense has been or is being committed by the person arrested.

ii. For Search: The facts and circumstances within the officer’s knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that evidence subject to seizure will be found in the place to be searched.

iii. Probable Cause is based on the Totality of the Circumstances (Gates).

c. Probable Cause and Informants for Search Warrants

i. Standard (Gates): So long as the judge issuing the warrant had a substantial basis for concluding that the search would uncover evidence of wrongdoing, the warrant was valid. This is based on a common-sense analysis of the totality of the circumstances, which includes, among other factors, the reliability/veracity and the basis of knowledge of the informant

1. GatesàWhere Informant writes anonymous letter which predicts many future acts accurately including dates, flights, driving route, and gets one fact wrong (wife drove back with husband), this is sufficient to satisfy probable cause for a search warrant based on totality of circumstances.

2. The Totality of the Circumstances Approach replaces the rigid Aguilar-Spinelli Test. Totality fits better with warrant issuing because these are often based on judges’ commonsense judgments.

3. DraperàWhere independent police work corroborates many details of the informant’s report on future acts, and the informant also states that D is doing an illegal act, this is sufficient fo

have probable cause to believe the item is seizable (contraband, fruit, instrumentality, or evidence).

iii. Information obtained during the search may narrow the searchable area

1. EX: GarrisonàWarrant to search a specific apartment address that was actually divided in two did not give officers right to search both apartments. But, officers did not discover this fact until after searching both, and thus both searches valid. If an officer has a warrant and makes a good faith mistake in executing the warrant, still valid. The question is whether officer knew or should have known they were making a mistake.

iv. A warrant to search a home or premises does NOT give authority to search persons at the scene, even if the evidence for which police are looking might be on them, unless the warrant specifically allows for search of a specific person. (Ybarra).

1. ExceptionàWhere police have independent probable cause + some justification/exception for conducting the search without a warrant.

v. In executing the warrant, police may detain the occupants of the premises while the search is conducted. Includes the right to use reasonable force to secure and maintain detention.

VI. Exceptions to the Warrant Requirement

a. Exigent Circumstances: To prevent imminent destruction of evidence; To render emergency aid; Hot pursuit of a fleeing felon

i. Police Created Exigency (King): Unless police created the exigency by engaging or threatening to engage in conduct that violates the 4th Amendment, warrantless entry based on exigent circumstances (to prevent destruction of evidence) is reasonable and allowed. This is an objective standard based on the objective facts as they occurred, and whether these facts would make a reasonable officer believe there were exigent circumstances It does not matter what the officer’s subjective intent was.

1. EX: KingàWhere suspect in a controlled buy flees into one of two apartments, and the officers are unsure which one, officers entering the wrong apartment upon smelling marijuana was proper due to the objective facts making officers believe there as an exigency and because police didn’t create the exigency by engaging/threatening conduct that violates 4th Am.

ii. WelshàWhere police enter W’s house without warrant to get evidence of BAC for a non-criminal offense (drunk driving was non-criminal), no exigent circumstances to justify the warrantless entry because it was only a minor offense.

iii. StuartàWarrantless entry of a home upon discovering that there was a fight and one adult was bleeding was reasonable because the officers were attempting to protect a person from imminent injury. “Community caretaking” emergency exception to the warrant requirement.

b. Searches Incident to Arrest (Non-Automobile)

i. Chimel/RobinsonàWarrantless search incident to a lawful arrest based on probable cause is limited to a full search of the arrestee’s person and the area within his immediate control (wingspan) – the area from which he might gain possession of a weapon or destructible evidence. This search includes any containers or packages that are on D’s person, and is automatic incident to arrest.