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

Tomkovicz_Criminal Procedure Investigations_Fall_2015
Criminal Procedure
Chapter 1: Addressing what’s a search under the 4th Amend.
·         States CANNOT abridge rights, but they CAN offer more protection
·         4th Amend. doesn’t apply if the search isn’t unreasonable—isn’t a 4th Amend. search à no 4th Amend. violation
Questions to consider when deciding if a search is illegal:
1.      Did the D have an actual and reasonable expectation of privacy?
2.      Was society prepared to accept that expectation of privacy?
a.       Was the illegal activity in public?
b.      Could the public have accessed knowledge of the illegal activity the same way the cops did (even if a stretch to imagine)?
c.       Were conversations consented to?
d.      Was GPS surveillance long or short-term?
Two doctrinal standards for determining if gov’t action is a search
A.     Katz standard (Katz and other person were talking to each other via payphone and neither knew about the tapped phone)
1.      Before Katz, there had to be physical penetration of an area for a search à Now, whether or not there was physical penetration has no bearing on whether it was a search
o   Just has to be a violation of privacy on which the D relied
2.      The defendant had a an actual expectation of privacy
o   No claim if the conversations were out on the open street instead of in a phone booth à couldn’t reasonably expect privacy
o   No claim if he knew the phone booth was bugged à same thing—no reasonable expectation of privacy
3.      Society was prepared to accept that expectation as reasonable
o   D voluntarily disclosed information to a third party who then conveys that information to the government
§  White: D willingly passed information to information through wire à no search
–          No recognized expectation that a person won’t share information from a conversation with the police (assumption of risk)
–          Knowingly exposed his thoughts à can’t ENSURE the privacy of thoughts once they’re disclosed to another person
–          No difference between “wired false-friends” and “real-false friends”  (like from Hoffa, where there was no wire involved) à court held that they’re the same thing
–          Dissent said that it will basically destroy any sense of security that a person has while talking to another
§  Smith: phone company used a pen register and passed information to police à D convicted
–          D should have known that the phone company would record information from its customers à no reasonable expectation of privacy à no illegal search
–          Court viewed the pen register the same as Hoffa and White—voluntary exposure of the information
–          Alternatively: If the phone company exposed the conversations to the police à SEARCH because D wouldn’t be purposefully exposing conversations
o   Knowing Exposure to the Public
§  Ciraolo: cops used a plane to fly over D’s house to see weed, although at ground level couldn’t see anything because of tall fences
–          Within the curtilage of the home, but no expectation of privacy (regardless of the clearly manifested subject intent and desire for privacy)
–          Airspace is open to the public à technically anyone in a plane could fly over and see what the cops saw à knowing exposure to the public
§  Florida v. Riley: helicopter surveillance case
–          Had it been an airplane instead of helicopter flying at 400 feet, it would have been a search because the public can’t fly planes at 400 feet, BUT public can be in helicopters at 400 feet
§  Knotts: the GPS drug surveillance case (using a beeper to track car)
–          NOT a search because no information that couldn’t have been secured by surveillance of public place
–          D exposed his route to others by driving on a public road
–          Implication: as long as the police are only monitoring people in non-private areas (like a road) the search is okay (couldn’t do a GPS search of a person inside their home)
–          The access to information by just watching just has to be hypothetically practical—even if it’s a long-shot
–          Court is considering the differences between short and long-term GPS surveillance à long-term will expose much more information, and would thus be a search
o   Protecting the privacy of the party doesn’t do anything to serve society’s interest
§  Oliver: cops entered property, walked around a fence, and then found weed
–          4th Amend. doesn’t protect open fields, only the home and the curtilage
o   Consider proximity to home
o   Any enclosure around the area
o   How the area is used
o   Whether others are excluded from the area
o   Typically, activities that occur in open fields will be deemed to appear in the public
–          “No trespassing” signs don’t necessarily mean that people won’t enter
o   Government wouldn’t gain anything of significance by recognizing the expectation of privacy
§  Jacobsen: Feds knew there was white powder in a package (FedEx told them), so it was tested and showed that the powder was cocaine à a chemical test that discloses whether a substance is illegal doesn’t violate privacy tests à NOT a search (but if other evidence was revealed, it WOULD be a search)
B.     Jones-Jardines standard
1.      Florida v. Jardines: bringing the drug dog onto the porch of a house was a search because of the physical invasion upon curtilage
o   Have to look at the implicit license—whether or not it was okay depends on the time of the day and other factors
o   Dogs aren’t usually considered privileged to enter a person’s curtilage
2.      Jones: tech monitoring of public movements following physical intrusion on an effect or long-term monitoring of all public movements without physical intrusion on an effect à SEARCH
o   Like law enforcement installin

e a warrant, it is unreasonable
b.      Exceptions apply to the search warrant requirement
2.      Purposes of the Rule
a.       Prevention of unjustified searches
b.      Limit scope of justified searches
c.       Prevent “after-the-fact” justification of unreasonable searches
B.     Arrests and Arrest Warrants
§  Arrests must ALWAYS be grounded in probable cause
1.      Arrests in Public Places (No-Warrant required)
a.       Basic Rule: Arrests made in public places for FELONIES, and the arrest is made based on probable cause à no warrant required
b.      U.S. v. Watson:
§  Basic facts: guy arrested for mail fraud although there wasn’t a warrant à Court upheld the statute that allowed the arrest
§  Does NOT answer public misdemeanor arrests or private arrests!
2.      Arrests for MINOR OFFENSES (like traffic offenses) okay if there’s probable cause
a.       Note: crime must have occurred within the officer’s presence
b.      Atwater case: women arrested for not putting on her kids’ seatbelts in the car and was arrested à arrest okay because in officer’s presence
§  D MUST be committing crime in officer’s presence
3.      Prompt determination of probable cause (applied for arrests without warrants)
a.       Gerstein: Person arrested without warrant entitled to quick judicial determination of probable cause as a condition for “pretrial restraint on liberty”
b.      McLaughlin: 48 hours sufficiently prompt
4.      Rules for Activities that Occur upon Arrest
a.       Florence: if a person is arrested and admitted to jail in the general population, strip search and body cavity inspection is okay without any specific showing
b.      Maryland v. King: if a person is arrested and detained for a serious criminal offense à okay to take cheek swab for DNA for ID’ing arrestee
5.      Arrest in the Arrestee’s Home (Warrant Requirement)
a.       Must have warrant for nonconsensual entry into suspect’s home to make arrest
§  Justified because entry into home is primary thing that 4th amendment protects against
b.      Only exception is when there are exigent circumstances à examples:
§  U.S. v. Santana: D was standing in public place (her doorstep) when police showed up, then fled inside her home à warrantless entry into home can be justified when in “hot pursuit” of felon