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Criminal Procedure: Investigation
University of Iowa School of Law
Seo, Sarah A.

Criminal Procedure – Seo – Fall 2016
Sources of Law
4th A – Right to be free from unlawful search and seizure
5th A – Right not to be forced to give self-incriminating statements
6th A – Right to counsel
14th A – Incorporates 4th, 5th, and 6th amendments and makes them applicable to the States

“[The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizure, 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].”
Three initial questions:
Was there a search and seizure?
If so, was S&S reasonable?
If not, what is the remedy?
4th Amendment – Search and Seizure
Exclusionary Rule
Weeks v. United States (1914)(4A violation results in exclusion in federal case)
4A violation results in exclusion of evidence in federal criminal cases
Wolf v. Colorado (1949)
4A violation does NOT result in exclusion in state cases unless state says; federal exclusion not from constitution so can’t be forced on states
Mapp v. Ohio (1961) (reverses Wolf – Exclusionary rule applies to states via 14)
Exclusionary rule DOES apply to states via 14A. More states use it now; avoid lack of effective sanctions for 4A violations; uniformity in fed/states; removes incentive for cheating
Police illegally searched woman’s home for fugitive. Didn’t find them but did find nude sketches.
Good Faith Exception to Exclusion
Unites States v. Leon (1984)(Magistrate error issuing warrant)
Police relying on magistrate’s search warrant that turns out faulty make a reasonable mistake of good faith & exclusionary rule will not operate; If not a reasonable mistake, exclusionary rule will apply
4A is meant to block police misconduct, not judicial misconduct so no deterrent value in excluding the evidence because police did no wrong
Police surveillance affidavit magistrate warrant search affidavit insufficient, warrant faulty evidence admitted on good faith
Herring v. United States (2009)(Police error in record keeping)
Exclusion only triggered by police negligence at Reckless or Gross levels; also triggered by deliberate action such that deterrence would be effective
Acting on warrant based on record error not sufficient to trigger exclusion
Cop wanted to arrest known felon, asked for all warrants; records error showed outstanding warrant; search incident to arrest found gun and drugs
More Exclusionary Exceptions: Attenuation, Inevitable Discovery, Independent Source
Wong Sun v. United States (1963)(If sufficiently attenuated, not excluded)
Exclusionary rule applies to verbal statements; if statement is sufficiently attenuated from illegal search, taint is removed and will not be excluded
Fruit poisonous tree exceptions: indep. source; attenuation; inevitable disc.
Illegal searches (no PC, no W) produced statements and drugs linking several people together. D1 ratted D2 who ratted D3. D1/2 bad, D3 ok.
Utah v. Strieff (2016)(Valid arrest warrant attenuates an illegal police stop)
A valid arrest warrant attenuates an illegal stop; evidence not excluded because the connection between illegal search and evidence is interrupted by intervening circ. such that violated right not really served by exclusion
Brown factors: temporal proximity, intervening circumstance, purpose and flagrancy of official misconduct
Warrant created duty to search on valid arrest; only stop was illegal and was not flagrant misconduct
Police illegally stopped guy coming from suspected drug house and found outstanding warrant; search incident to arrest found evidence.
Nix v. Williams (1984)(inevitable discov. makes otherwise excluded evidence ok)
If pros. can prove by preponderance that evidence (body) would have been inevitably discovered, then it should not be excluded; no deterrence
Police violated Miranda and extracted location of dead girl’s body – massive search for was already underway and body was in area of search
Couldn’t admit statements, could admit body since discovery inevitable
What is a search?
Two part question:
1) What the action a gov action?
Yes if gov employee, private party acting for gov
2)What the gov action a search/seizure?
Per Katz – intrusion on REOP
Trespass on const. protected area

rily conveys his illegal acts has no REOP. Tech = no dif.
Wire on an undercover informant w/o W
Kyllo v. United States (2001)(Thermal imaging/weed grow not ok: home entry)
Use of sense enhancing tech to enter a home w/o physically entering is violative of 4A w/o W. Thermal imaging of home = entry of home.
Tech cannot be used to erode the 4A; we must guard against future tech that will inevitable exceed the ability of our walls to keep eyes out.
Thermal imaging not in general public use, so not reasonable
United States v. Jones (2012)(Katz didn’t replace trespass w/ REOP – added to it)
Katz did not replace trespass theory, it added to it
Gov agents trespassed on D’s property (car) to plant the GPS device
Prof. says this doesn’t kill GPS tracking, only GPS tracking w/ trespass
Other cases w/ GPS tracking ok because D took GPS tracker (unknowingly) and placed it where it could track him (Karo; Knotts) – if D had been given tracking device and put it in his own car – no problem.
Concurrence – Mosaic Theory creates problem and may require W
GPS attached to undercarriage of car; expired W and wrong jurisdiction
Dog Sniffs
Luggage at airport is not a search since no opening/public exposure is required; reveals only contraband, so no REOP (US v. Place 1983)
Dog sniff of a car during a lawful traffic stop is not a search since there is no effect on REOP; no need for RS of crim. activity (Ill. v. Caballes 2004)
Cannot add time to a lawful traffic stop to do a dog sniff unless there is reasonable suspicion (RS) of crim. Activity (Rodriguez v. US 2015)
Cannot sniff front porch of a home w/o W or permission because home is const. protected area so need a W. Concurrence agreed on Kyllo sense enhancing grounds. (Florida v. Jardines 2013)