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

Criminal Procedure: Investigations

James Tomkovicz

Spring 2017

Ch.1 The “Threshold” of the Fourth Amendment Right to be Secure Against Searches

The threshold question involved in cases in this chapter is whether the government action is a SEARCH, subject to 4A regulation.

There are two doctrinal standards for determining whether the government action is a search. The main test is the Katz standard. The alternative is the Jones-Jardines standard

FACTORS INDICATING SOCIETY IS NOT PREPARED TO RECOGNIZE AN EXPECTATION OF PRIVACY AS REASONABLE

Voluntary revelation/disclosure to 3rd party (acting for government) who conveys/transmits the information to the government (assumption of risk) (White, Smith)
Knowing exposure to public (Ciraolo, Knotts)
No societal interest in protecting privacy of matters/information. (Oliver)
Nothing, Nothing of significance, nothing legitimate could be learned by government (Jacobsen).

JONES-JARDINES ALTERNATIVE THRESHOLD DOCTRINE STANDARD

A search occurs when:

The government physically intrudes into/trespasses upon a constitutionally protected area (e.g., an effect or a home/curtilage or a person)
In order to obtain information AND
Does obtain information.

THE FOLLOWING ACTIVITIES WERE DETERMINED TO BE SEARCHES

Electronic eavesdropping on words spoken into telephone in phone both (Katz)
Tactile manipulation (squeezing) of personal effect in exploratory manner (i.e., more than public does) (Bond)
Thermal imaging of home (Kyllo)
Any technological monitoring of public movements following physical intrusion on an effect or long-term technological monitoring of all public movements even without physical intrusion on an effect (Jones)
Obtaining information by physical intrusion into curtilage not within the scope of a license/permission to enter (Jardines)
Attachment of satellite-monitoring device to person and monitoring movements of person. (Grady)

THE FOLLOWING ACTIVITIES WERE DETERMINED NOT TO BE SEARCHES

Third-party monitoring of conversations with or without recorders/transmitters. (White)
Government-instigated installation and use of a pen register by the telephone company to ascertain and record the numbers dialed from a home phone. (Smith)
Aerial surveillance of a curtilage/greenhouse with naked eyes from lawful airspace at altitude where public presence is sufficiently routine/regular. (Ciraolo; Riley).

Aerial surveillance not a search if lawful altitude, public present in that space, and public could see from space (No matter how unlikely).

Short-term technological monitoring of public movements without intrusion on effect. (Knotts)
Entry of/trespass on “open fields” (Oliver)
Reopening package when, because of what is known, it is “virtually certain” officers would learn nothing. (Jacobsen)
Chemical field test of substance that can determine only whether it is or is not illegal narcotics. (Jacobsen)

Katz v. United States (1967): The petitioner used a public telephone booth to transmit wagering information from Los Angeles to Boston and Miami in violation of federal law. After extensive surveillance, the FBI placed a listening device to the top of the telephone booth and recorded the petitioner’s end of the telephone conversations which was then used as evidence against him at his trial. The petitioner moved to have the evidence suppressed under the Fourth Amendment of the Constitution, and that motion was denied. The Court of Appeals rejected the contention that the evidence is inadmissible. Certiorari was granted.

Issue: Whether the Fourth Amendment of the Constitution protects telephone conversations conducted in a phone booth and secretly recorded from introduction as evidence against a person?
Rule of Law: The protection of the Fourth Amendment of the United States Constitution (“Constitution”), against unreasonable searches and seizures, follows the person and not the place.
Test: Government action is a SEARCH when it invades/violates a “reasonable” (“legitimate” or “justifiable”) expectation of privacy. This occurs when:

The individual has exhibited an actual [subjective] expectation of privacy;
And society is prepared to recognize that expectation as reasonable.

Why the change from strict physical trespass test? Technological change demanding a more general understanding of the 4th Amendment’s provisions. Privacy is what they sought to protect, must update the 4th Amendment as privacy faces new threats.

United States v. White (1971): Federal authorities, working with an informant, were able to electronically record conversations with the Respondent that were later used to convict the Respondent. Authorities used radio equipment to record several conversations, as well as personally overhearing the conversations. The electronic recordings were shared with other agents.

Issue: Whether the electronic recording of private conversations with the Respondent for the purpose of instantaneous dissemination with other agents violates the Fourth Amendment of the Constitution?
Rule of Law/Holding: The recordings do not violate the Fourth Amendment of the Constitution. The majority affirms that the Respondent cannot rely on the expectation that a conversation is private, and in doing so affirm a line of cases that upheld the seemingly private conversations recorded by government agents. The majority believes that it would be illogical to draw a line between conversations heard through agents without electronic recording and those without the electronic recording.

Smith v. Maryland (1979): Woman was robbed; following robbery received threatening phone calls from robber. Upon learning his identity, telephone co. installed pen register at its offices to record numbers dialed from the robber’s house, at the request of the police. The police did not obtain a warrant.

Issue: Does the use of a pen register constitute a “search” within the meaning of the 4th Amendment?
Holding: A pen register is not a search because the “petitioner voluntarily conveyed numerical information to the telephone company” and no warrant is required. He assumed risk of disclosure, it would be unreasonable for him to expect his phone records to remain provide.
Reasoning: Since the defendant had disclosed the dialed numbers to the telephone company so they could connect his call, he did not have a reasonable expectation of privacy in the numbers he dialed. And if he did have an expectation of privacy, it wasn’t reasonable.

California v. Ciraolo (1986): The Santa Clara Police received an anonymous tip that Ciraolo was growing marijuana in his back yard. Unable to observe the yard from the ground due to a high fence which encircled it, the police secured a private plane and flew over Ciraolo’s house at an altitude of 1,000 feet. The fly-over confirmed the presence of marijuana. The police then obtained a search warrant, seized 73 plants on the next day, and arrested Ciraolo who then pleaded guilty to the cultivation of marijuana. The California Court of Appeals, however, found that the aerial observation was illegal and reversed Ciraolo’s conviction.

Issue: Did the warrantless, aerial observation of Ciraolo’s back yard from an altitude of 1,000 feet constitute an illegal search and violate the

ifornia v. Ciraolo, as “they involved only visual, as opposed to tactile, observation.” The Petitioner “sought to preserve privacy by using an opaque bag and placing that bag directly above his seat,” and “[did] not expect that other passengers or bus employees will, as a matter of course, feel the bag in an exploratory manner” as the agent did. Thus, the agent violated the Petitioner’s Fourth Amendment rights by squeezing the bag.

Kyllo v. United States (2001): The police obtained evidence of a marijuana growing operation inside the defendant, Kyllo’s (the “defendant”) home, by using a thermal imaging device from outside the home. The police used the device to gather evidence to support issuance of a search warrant for the home.

Issue: Does the use of a device by the government to obtain evidence from a constitutionally protected area without physical intrusion constitute a search under the Fourth Amendment of the Constitution?
Holding: Where police obtain information about the inside of a home without physical intrusion (and the information would have been unknowable without physical intrusion), using a device not normally used by the public, the police action constitutes a Fourth Amendment search and is presumptively unreasonable without a warrant.
Reasoning: The Fourth Amendment of the Constitution protects persons and their property from unreasonable searches by the government. The home is one place where society deems an expectation of privacy reasonable. In order to preserve this degree of privacy, government searches under these circumstances must be supported by a warrant. The Fourth Amendment protections are not conditional upon the quality of information obtained by the government. So long as there is a subjective expectation of privacy and society is willing to recognize this expectation as reasonable, the government must obtain a warrant before conducting a search.

Majority: tech isn’t in public use. Public would never have discovered heat differences. Not exposed.
Everything in the house is an intimate detail

Home is sacred. Court doesn’t want to take away 4A protection from a part of the home.

Off-wall vs. through-wall: meaningless. Police clearly think they learned about interior home activities.
Importance of widespread public use of tech on knowing exposure? Look to Ciraolo. General use of planes led to knowing exposure. Without general public use, couldn’t knowingly expose information.

United States v. Jacobsen (1984): Government agent reopened a package that had been previously opened by a FedEx employee who qualified as “private parties.” They then applied a chemical “field test” that identified a substance in the package as cocaine.

Holding/Reasoning: No search. A governmental action does not threaten protected privacy interests if the government is almost certain to learn nothing at all, nothing of significance, or nothing “legitimate.”