Select Page

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

Criminal Procedure: Investigation
Fall 2017
Bill of Rights don’t apply to state law
14th Amendment ties states to follow the due process of law
All that is covered in this course are protected by due process and tie the states
2 clauses considered under the Fourth Amendment
Unreasonable searches and seizures
The right against unreasonable searches and seizures
Warrant Clause
Chapter 1
Focuses on the word Search
If not a search, government has unlimited power to do what they want
Don’t have to act reasonable, giving government absolute right
If found to be a search, government has to act reasonably
There are two doctrinal standards for determining whether government action is a search:
Katz Test
Jones-Jardnies Test
Katz v. United States
The Government put electronic listening device on the outside of a phone booth
Precedence to case relied upon physical intrusion for a search to exist
Court ruled in favor of Katz because physical intrusion was no longer required
The reach of the 4th amendment does not rely upon physical intrusion
Instead, the amendment relies upon the privacy which people justifiably rely upon
Case left ambiguity because we didn’t know what kinds of reliances are justified
Because the Court found it was a search, the government must act reasonably
The decision overturned requirement for physical intrusion
Searches occur when the government violates justifiable privacy
The Katz threshold
Government action is a search when it 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
U.S. v. White
Federal authorities used an informant to electronically record conversations with the respondent
Agent used radio equipment to transmit conversations to agents nearby that had the other radio equipment
Court found that this was NOT a search
Biggest difference with Katz was that the government had the other party’s permission to listen to their conversations
If person willingly passes the conversation- the 4th amendment is not violated
Just because the party petitioner was conversing with was undercover did not make the conversation a search
In Katz, the government technologically eavesdropped on petitioner without permission
Here, petitioner produced information by telling the person he were talking to
Decision held that willingly passing information to government does not constitute a search
Petitioner took the risk that the other party would share and that risk not protected by the 4th
The 4th protects against searches by the government or government agencies
If random person does a search, it is not protected
Smith v. Maryland
Police used Phone Company’s pen register to track the petitioner and charge him with a burglary
Petitioner kept calling his victim and harassing her- government used the numbers he dialed to confirm it was him
Court found this was not a search- which allowed government to do what they did and not be reasonable
Issue of the case was whether the government invaded a justifiable, reasonable, or legitimate expectation of privacy
Court considered this by analyzing two sub-questions
Did individual exhibit an actual expectation of privacy?
Is society prepared to recognize that expectation as reasonable?
If the answer to number 1 is no, then no search
If yes, must consider #2 and find that as yes too in order to constitute a search
Typically, question 2 is the one that actually dictates cases, question 1 is just whether the individual expected privacy from the government
This is the court applying the Katz test
When a 3rd party gives info to the government, justification of privacy is not infringed upon
Court also rejected that petitioner’s legitimate interest in privacy had been infringed upon because all subscribers know the telephone company has a way to record their calls
The conversation may have been intended to be private, however, the numbers dialed were not
California v. Ciraolo
Here, petitioner’s yard was surrounded by a large fence that could not be seen over or through from street level
The officers flew over the petitioner’s home in a private plane and observed marijuana being grown
In the past, the court has held that curtilage is protected under the Fourth Amendment
However, the Court held flying over is not a search
One of the reasons it was deemed not a search was because it was observed by the naked eye
When a person openly exposes something to the public in home or office, that is not protected by the Fourth Amendment

uld also do
Can’t come at 3am- that would constitute a search
Bringing drug dog onto curtilage, but on public path= search
This is outside the license of the general public
Jones-Jardines Alternative Threshold Doctrine
A search occurs when:
The government physically intrudes into/trespasses upon a constitutionally protected area
I.e. Home, curtilage, person
In order to obtain information, and
Does obtain information
Bond v. U.S.
A passenger had his bag on Greyhound bus. Police boarded the bus and squeezed the defendant’s bag and felt a “brick like object” in the bag. Ended up being meth.
Supreme Court held that the physical manipulation of the bag exceeded the expected touching by others and the public would reasonably deem this a violation of the 4th amendment 
Because Court found it was a search the officer must have been reasonable in touching the bag
Court found that casual moving would fall within reasonable expectation of privacy
Whenever an individual puts something in public they expose it to a certain degree of less privacy
Here, passenger exposed his bag to casual touching that is expected by other passengers
Not the manipulating squeezing done by the officer
The decision is slightly different than Ciralo
There, Court said that public could look from 1,00ft, didn’t ask if they do. Just asked if it was in a public space and whether the public could do so
If yes on both, then police can do so and be reasonable
The Court here asked whether the public squeezes bags on buses
Bond focused on what the public does- not what they could
Public does not typically squeeze other’s bags, so unreasonable for police to do so
Jones asked whether there is physical intrusion WITH the purpose of gaining information
Here, the squeeze was classified as intrusion and the officer was doing so to find out what was in the bag