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

Crim Pro Tomkovicz Spring 2017
Am. IV – searches, seizures, warrants
Am. V – witness against oneself, DP
Am. VI – counsel
Recall that Bill of Rights was not originally applicable to states (Barron), only made applicable mostly by Am. XIV. States can of course extend more constitutional guarantees under state consts.
What is and isn’t a search – reasonableness and ability to do.
Katz v. U.S. (1967, p. 5), Am. IV case. What is a search? They put electronic listening device on outside of phone booth. Previous precedent had said no search, the law under Olmsted and Goldman had been about physical intrusion, “trespass doctrine”. But here they said there was search b/c they violated privacy which had been justifiably relied upon. Unclear exactly how far this goes. Katz is quite ambiguous and there are recurrent criteria for whether it’s justifiable to rely on privacy. Stewart says it has little to do with privacy sometimes b/c it’s seizure, but whatever, searches protect privacy. This revolutionized trespass doctrine and overturned requirement of entrance/trespass into a protected area, which is hard to administer. Black’s dissent calls for a physical intrusion requirement, nothing in the text of Am. IV referring to eavesdropping and the Founders certainly knew about eavesdropping. Text and history, if anything, point against protection of “privacy” and always mention tangible things. But what does majority have? They say Am. IV protects people and not places, that was how people invaded privacy (i.e. purposes, values, interests), here closed phone booth is different than hiding under windows.
U.S. v. White (1971, p. 11), Am. IV case. Government put radio on CS, who talked with D, unbeknownst to D and his conversations. Previously said, pre-Katz, that this was OK b/c no physical intrusion. Here, Ct. App. after Katz said it was search. But SCOTUS says this wasn’t search (no majority for opinion but got it later) D had no reasonable expectation that it was private b/c he was just talking to a person who could always turn around and give it to the gov’t (was the case in Katz too) here, gov’t was just facilitating the betrayal, essentially. “Katz involved no revelation to the gov’t by a party to the conversation, D has no expectation that conversant won’t later reveal to police.” Basically, it’s what expectations are justifiable. Must be to person whom D is talking to, knowingly and willingly (i.e. is other person choosing to reveal it). Distinguishing thing between this and Katz is what risk you take, Katz’s risk was that the guy would share – but that’s not what got Katz, it is what got White, it’s about sacrifice of own privacy. Dissent is worried about insecurity in people’s lives, unknown people will be listening. Generally, at least some coercion is probably allowable. Now, what if it’s not the gov’t getting the info originally? That’s OK, a 1921 holding that Am. IV doesn’t regulate private conduct.
Smith v. Maryland (1979, p. 17), Am. IV case. Use of pen register to monitor who D was calling. Was gov’t action because gov’t asked phone company to do it. Held not a search b/c no reasonable, justifiable, or legitimate expectation that phone company won’t record your numbers. Two-step analysis: (1) actual subjective expectation of privacy? (2) is society prepared to recognize that expectation is reasonable? Both must be yes for it to be a search. Smith gets no on both. First question is generally ignored, understandably. Hard to see how Smith fails on (1), but whatever. Marshall does hit it on (1) – the guy did expect the gov’t not to know! Bigger issue here is (2) – legit expectation of privacy not violated b/c of phone K. Marshall says not choosing to give up privacy, you have no alternative to banks or phone companies. Key here is that Smith “voluntary” turned over info to 3P, though conveyance to gov’t needn’t be voluntary – and content of convo is not the fact that it happened (much to do with what info have been volunteered too.
Now, you do have reasonable expectation of privacy in curtilage.
California v. Ciraolo (1986, p. 25) Am. IV case. Was not search to fly over house, though has to be in safe (legal) airspace. Though note FN11 (p. 26), what was relevant was what they saw with the naked eye, camera is less clear. Continually emphasizes “naked eye” too. Can’t be sure re: camera or lower than 1K feet. 5-4 split shows how ambiguous Katz was – majority says (1) was just hope they’d find something, and (2) publicly navigable airspace is public, public would have no expectation that this not seen. Katz says that what a person exposes in his own home or in public is not private. Basically, a horizontal look is akin to vertical look, don’t invade privacy of area b/c from public area to which opposed. Dissent says it’s not really exposed or publicized, public isn’t looking down and seeing what’s in the backyard from planes, using technology that Framers could never have anticipated and has expanded ability to invade curtilage. All Justices agree that it must be shown that public is at that height routinely. Also must be regular public use of that technology (hot air balloon, ladder, tree), public presence must be regular/routine/not rare, must use same tech too.
Now, note the Oliver (1984, p. 31) open fields doctrine distinguishing protected curtilage and unprotected open fields (or woods too), basically other non-curtilage land. The home is what’s important, and the curtilage is part of the fields. Oliver says that language doesn’t say field and there’s no reasonable expectation of privacy, “no societal interest in protecting privacy of fields,” (not about exposure and disclosure – here, private things don’t happen. Now, Oliver did not say that curtilage gets same protection as home, may be less and that’s arguable. There are four factors to determine curtilage and open fields: (1) proximity to home, (2) existence of enclosure, (3) uses to which area is put, (4) precautions taken to exclude others (mere fences and signs generally not enough). Only clear line is certain distance from home.
Now, note Jones (2012, p. 33), what about GPS device in car? If gov’t put it in his care, it’s a physical invasion of private property for info and got it, therefore search (Katz supplemented old physical occupation, did not get rid of it – Katz can’t turn on presence or absence of physical intrusion). What if using factory installed device and getting info from OnStar? If for short time, it’s like Knotts (p. 33), if it’s in public and could be seen by public eyes, then not search and OK. If for a long time (p. 35, Alito concurrence in Jones), of all public movements, does impose on reasonable expectation of privacy (this law b/c Sotomayor joined on that one too). Must be public, on public roads, Alito says all public movements not OK, though maybe OK for “extraordinary offense” (i.e. terrorism). And if you enter curtilage on public path (sidewalk, etc.), OK (Jardines), spatial/temporal and purpose limits (not invited for dog-sniffing purposes) (if on public sidewalk, ehhhh)
Bond v. U.S. (2000, p. 38) Am. IV case. Went through Greyhound squeezing soft things. Ct. App. held that this was not a search b/c there was reason to expect others to handle the bag. This was the first time Katz was used to hold something  a search. SCOTUS says this was a search bc this was not casual contact with the bag, it was probing and exploratory and that matters, the manner matters. Scalia/Breyer are worried about jurisprudence of squeezes and how hard they squeeze. Though this deals with reasonable expectation, what you’ve exposed your bag to. Debate here, what does public do? Almost factual dispute. Tension between Ciraolo and Bond – in Ciraolo, the court said the public was there and could’ve looked down, in Bond anyone could’ve touched the bag (Ciraolo benefits gov’t, Bond benefits D). Possibly relates to Jones, physical intrusion?
Kyllo v. U.S. (2001, p. 42) Am. IV case. Used thermal imager on house from public area, found it to be hot. Argument that not search: (1) no intrusion, (2) no intimate info learned (echo of Oliver), (3) no precautions to keep heat inside (i.e. knowing exposure to public vantage point) (Stevens basically thinks that temperature has no legitimate privacy interest). But SCOTUS says this is search b/c couldn’t see or detect  heat with naked eye or sense, and bright line is helpful, and Scalia says everything inside house deserves protection, all intimate details. Now, if thermal imagers got super popular, might be more knowingly exposed (start of pt. III, p. 44), not in general public use (and use) (on homes? For this? Could use versus does use? Who knows?) – Barns and greenhouses (not home – home is emphasized, maybe extends past that, maybe not). Standard in Kyllo: “where gov’t uses device/tech not in public use to explore details of home that would’ve been previously unknowable w/o physical intrusion, surveillance is a search.” Definitely learned something about interior of the house, otherwise wouldn’t have gotten the warrant. Stevens says too broad (off the wall included – but it’s telling you what’s going on). Scalia says general public use comes from Ciraolo.
 Now note Jacobsen (p. 52-53). Officers opened FedEx package, not search b/c FedEx employees had previously opened it and told officers what they found, privacy could not be violated bc there was virtual certainty (BEFOREHAND) that nothing else of significance could be found. And they did a field test, also not a seach b/c no privacy interest in non-drugs and no legitimate expectation of privacy for drugs (this test just said drugs/no drugs, and no drugs was insignificant, so dog sniff may not be search.
So, threshold of Am. IV:
Now, onto Chapter 2 – what role does PC play in reasonableness and unreasonableness? PC to arrest and search: (a) similarities: both by reasonable person standard and same level of prohibition required. But (b) difference in conclusions. (c) arrest conclusion (1) that person to be arrested (2) committed/is committing crime. (d) search conclusion: (1) something subject to search by gov’t (2) will be in specific place when search occurs.
Some intro points on PC – (4) quantum question: how probable? (see Gates) (5)

only fine, and got 4 votes for this – but rejected b/c bright-line rule makes it hard for officers to figure out whether jailable. She has better argument for individual case, but won’t impose this bright-line rule b/c gov’t interest in readily-administrable rule. (O’Connor’s argument against this is PC, which is also unclear, and says interest in clear rules doesn’t outweigh effect of this rule.) Souter says clarity not for own sake, it’s so officers won’t make mistakes and let dangerous people go. Essentially, no epidemic of officers arresting everyone – officers do give tickets! Dissent wants rule of only citation when PC of fine-only offense unless also PC of non-fine-only.
So, hypo: Video of person littering. Can arrest? And what is “in his presence”? Note common-law rule against distinction for in-presence in Watson for felonies said warrant req’d for misdemeanors. Here, there is time. No need to do it now, wonder about gov’t interest. There is at least probably warrant rule, or maybe can’t arrest at all. Possible answers: (1) warrantless arrest OK, only PC to arrest needed. (2) Arrest warrant based on PC is ordinarily necessary and sufficient for valid arrest. (3) Ordinarily need arrest warrant and must show reason to justify arrest versus citation. (4) Need warrant based on PC to arrest and judicial finding beforehand that arrest is justified. So – are search warrants needed for const. reasonable searches (Johnson/Katz)? Arrests (Watson/Atwater)? So, issuance of warrants – specific: PC. What about anticipatory warrants? Grubbs (2006, p. 145) (a) Not categorically unconstitutional, fairly probable when search will be conducted (not now) that will be there. (b) Req’s (1) PC that triggering condition will occur and AND (2) PC to believe item will be in place after triggering condition occurs. (c) Specification of triggering conduct for execution in warrant is unnecessary, but triggering conduct bust occur before warrant executed. Oath/affirmation req’d. Note Franks v. Del., if D shows more likely than not that officer knowingly/intentionally, or w/ reckless disregard for truth, provides false info, it’s invalid warrant. And to be valid warrant, must be issued by neutral and detached magistrate who must be capable of determining whether PC exists for arrest or search authorized (need not be lawyer for minor offense). Context – Am. IV reqs particularity of places to be searched and persons and things to be seized. Must be specific to limit intrusion on privacy by vagueness. Must be as particular as can be expected in circumstances. Particularity must be in warrant itself (not just affidavit), but if warrant incorporates affidavit w/ warrant by reference AND goes with warrant, that’s OK (Groh).
Now, execution – knock-and-announce part of reasonableness (Wilson v. Ark., 1995) from common law, presumption in favor of announcement unless gov’t can show reason not to. B/c privacy, dignity, and property interest jeopardized by non-announcement presumptively outweighs gov’t interest. Must announce “presence and authority” or “identity and purpose.” Must wait reasonable amount of time. EXCEPTIONS: No need to comply if “reasonable suspicion” (lower than PC or fair probability) that knocking and announcing would be (a) dangerous, (b) futile, or (c) would inhibit effective investigation by, for example, allowing destruction of evidence. (1) No-knock warrants can be issued in advance. (2) Destruction of property allowed on same showing, but unnecessary or excessive property damage/destruction in an unreasonable seizure. (3) Categorical exception rejected, case-by-case showing req’d. (4) Reasonable suspicion arising after an arrest justified only before waiting reasonable time that would normally be necessary. Scope of searched under warrant – execution can be unreasonable b/c officers exceed scope (in places/time of search or due to presence of 3P not in aid of execution of warrant) (although if evidence found not related to 3P, then evidence allowed. So things to ask here: (1) What showing is needed? (2) What is scope of what’s allowed? (3) Why exempt?