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Criminal Procedure: Investigation
University of Iowa School of Law
Hughes, Emily

Criminal Procedure: Investigation Hughes Fall 2013

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 warantless search be based only upon “probable cause.” → ie stop and frisks.

o Illegal immigrants are not “people” under 4A. Must have a substantial enough presence to be considered part of the community to be offered 4A protections U.S v. Verdugo-Urquidez (1990)

o The 4A only limits governmental action. It does not reach private searches or seizures (landlord searching a tenants property, airline employee searching bag). 4A is triggered if police instigate or participate in a third party private search though. Burdeau v. McDowell (1921)


§ 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.


SEARCH (if it’s not a search, then there’s no 4th amendment protection)

§ Government contact? > No > No 4th amendment rights

§ Government contact? > yes > Reasonable exp. of priv? > No > no 4th amend

§ Gov’t contact? > yes > reason exp. priv.? > Yes > 4th Amend. Privacy exists

§ Search warrant? > No > any exceptions? > No. > illegal search

§ Search Warrant? > No. > any exceptions? > yes > legal search.

§ Search Warrant? > Yes. > valid search warrant? > No. > any exceptions…

§ Search Warrant? > Yes. > valid search warrant? Yes. > legal search

The Birth of the Exclusionary Rule

· At common law, and for decades after ratification of the 4A, your only remedy was a civil action against the agents who unconstitutionally took evidence from your home.

· The Supreme Court turned away from this approach and formulated a so-called “exclusionary rule”

· 4A only limits the conduct of agents of the federal, as distinguished from the state and local, government. State and local police are limited, if at all, by the 14A due process clause.

Mapp v. Ohio (1961)

· Facts: Police arrive at woman’s house because she is wanted for questioning and wanted to search her house for gambling paraphernalia. Woman refused to answer the door unless police could produce a warrant. 3 hours later more police arrive and they forcibly enter her home. Police showed a piece of paper they claimed was a “warrant” but handcuffed woman and took the piece of paper back after she hid it in her blouse. Woman was convicted of pornographic photos that were found during the search.

· Issue: is evidence obtained in an unreasonable search and seizure admissible at trial?

· All evidence obtained by searches and seizures in violation of the constitution is, by that same authority, inadmissible in a state court.

o Assurances against unreasonable search and seizures would just be “a form of words” otherwise. Exclusionary rule removes incentive to coerce evidence and is essential to the 4A and 14A to provide full meaning to their texts and states are not an exception.

§ 14A analysis extended the existing federal exclusionary rule to state court and proceedings.

o Exclusionary rule is common sense. Nothing can destroy a government faster than not adhering to its own laws. Government must provide an example to its citizens to no spread contempt and anarchy.

· Black’s majority needed concurrence: 4A does not entail exclusionary rule per se, but when 4A is combined with 5A, a constitutional requirement emerges because taking stuff unreasonably is no different than taking the stand-against one’s self.

Passing the Threshold of the 4A

What is a Search?

What governmental conduct constitutes a search or seizure of a person, house, paper, or effect and, therefore, triggers 4A protection?


Katz v. United States (1967)

· Facts: Man convicted of transmitting wagering information. FBI agents attached an electronic listening and recording device to the outside of a public telephone booth where he made his phone calls to transmit illegal information.

· Issue: (A) whether phone booth is a constitutionally protected area and thus provides a right to privacy? (B) Is physical penetration of a constitutionally protected area necessary to violate the 4A?

o The 4A protects people not simply “areas,” so issue (A) is misconstrued. “What a person knowingly exposes to the public, even in his own home or office, is not a subject of 4A protection. But what one seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”

o Even though defendant was in a glass booth and visible to the public, the case is not worried about the intruding eye, but the uninvited ear. Moreover, since 4A protects more than just “areas,” the 4A cannot hinge upon a physical intrusion into a given enclosure (B).

· Man justifiably relied on an expectation of privacy and the police eavesdropping via listening device consequently constituted a search and seizure under 4A. Also, because no warrant, the evidence is inadmissible.

· Harlan’s concurrence à RULE/TEST used by the Court from this case: 1) exhibited an actual (subjective) expectation of pri

e expectation of privacy that society is prepared to recognize as a reasonable expectation? à No.

· Pen register “differs significantly from listening device” because only shows numbered dialed not what was said. A pen register doesn’t show whether the call was completed, who made the call, nor does it overhear oral communications.

· Petitioner did not have an expectation to keep the numbers he dialed private.

o People know that they must convey dialed numbers to telephone companies due to the companies’ switching equipment.

§ There’s also a disclaimer in the phone book that phone companies can identify unwelcomed or harassing calls.

o Calling from the home makes no difference because telephone numbers are recorded by the phone companies no matter where the call is placed.

§ Although petitioner’s conduct may have been calculated to keep the contents of his conversation private, his conduct was not and could not have been calculated to preserve the privacy of the number he dialed.

· Even if petitioner did harbor some subjective expectation that the numbers he dialed would remain private, this is not an expectation that society is prepared to recognize as reasonable.

o “A person has no legitimate expectation of privacy in information he voluntarily turns over to third parties”

· Therefore, no search and no warrant required.

· Dissent

o Most people don’t know about pen registers and shouldn’t have to assume this info will be released to others for other purposes

o Majority’s test—people who convey info to third parties assume the risk of disclosure to government—is too broad.

§ People can’t help but make phone calls, so everyone assumes the risk of surveillance

§ Informing people they’ll be monitored opens the door to surveillance under this test.

§ 1A and 4A interests are implicated by unfettered official discretion.

· Implications

o A person going on vacation gives neighbor a key to water his plants. The neighbor now has explicit permission to observe what would otherwise be hidden from view. The vacationer has forfeited a measure of privacy and has thus knowingly exposed part of his home. However, the neighbor inviting his friends into the apartment to see the vacationer’s personal items, even just those in plain view from the plants, goes beyond the scope of the vacationer’s permission and represents and invasion of his privacy.

o U.S v. Place à exposure of respondent’s luggage, which was located in a public place, to a trained canine, did not constitute a “search” under 4A.