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

Criminal Investigation Outline
             I.     Searches and Seizures
A.    Introduction
                                    1.      4th Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularily describing the place to be searches, and the persons or things to be seized.”
                                    2.      These are the “unreasonableness” and “warrants” clauses.
a.      In order to avoid these limitations, prosecutors attempt to characterize investigative actions not as searches or seizures.
B.     What Constitutes a Search Under the 4th Amendment: The Threshhold of the 4th Amendment
                                    1.      Introduction
a.      Early Cases
i.        Boyd v. United States (1886): A search exists where the state forces from someone evidence against himself.
ii.      Olmstead v. United States (1928): A search only exists where there is an actual physical invasion.
b.      1952-1966: Undercover Agents cases
i.        On Lee v. United States (1952): An informants electronic transmission of statements to a nearby law enforcement officer do not amount to a search because (a) the speaker’s consent to the presence of the informant precluded a trespass, and (b) even though the speaker was speaking confidentially and indiscreetly with one he trusted, he was overheard.
ii.      Lopez v. United States (1963): Risk analysis approach: Where a party consents to the entrance of a party wearing a wire to enter his office, he takes the risk of recording and reproduction of the conversation for use in court, and so such a transmission is not a search within the confines of the 4th amendment.
iii.    Hoffa v. United States (1966): An informant that listens to, reported and testifies about inculpatory remarks did not search within the meaning of the 4th amendment.
c.       Electronic Eavesdropping without Informants
i.        Goldman v. United States (1942): There has not been a search where the government merely places a detectaphone against an outer wall and listens to conversations within the building.
ii.      Silverman v. United States (1961): There has been a search for 4th amendment purposes where the government sticks a spike mike into a wall in order to pick up conversations through heating ducts. The physical intrusion was deemed sufficient.
iii.    Clinton v. Virginia (1964): Even by merely attaching a listening device to a wall by means that caused a thumb tack sized penetration, the government had searcged within the meaning of the fourteenth amendment.
                                    2.      The Modern Rule: Katz and Beyond
a.      Reasonable Expectation of Privacy Doctrine: The 4th amendment generally applies only where (a) a person has exhibited an actual (subjective) expectation of privacy, and (b) that the expectation is one that society is prepared to recognize as reasonable (see Harlan concurring that later became law). Katz v. U.S. (1967) (agents use outside equipment to listen inside phone booth).
i.        Rationale: The 4th amendment protects people, not places, and thus it matters only that the party exhibited an expectation of privacy that was reasonable.
                                                                               (a).      Because the 4th amendment applies to people and not places, it cannot turn on the existence or absence of a physical invasion. The old trespass doctrine is not applicable any longer.
ii.      Katz Overruled Olmstead and Goldman notion that whether the action constitutes a search deals only with whether there has been a physical penetration of tangible things.
                                                                               (a).      The government’s activities here constituted a search and seizure.
b.      Expectations of privacy concerning conversations with others not reasonable: Where the other participant to the conversation invites the surveillance, it is not a search because you do not have a reasonable expectation that the conversation will be kept private. United States v. White (1971) (government informant wears a wire).
i.        The 4th amendment does not protect an individual from having his conversation with another individual transmitted and recorded which are later offered in evidence to prove the state’s case. Individuals assume the risk that there conversations may be recorded b

in general public use. Kyllo v. United States (2001) (officer uses infrared lens to see pot growing equipment in house).
1.      Test: Is the technology going to give the government the ability to see into the home as if they have entered the home, such that the founding fathers intended to protect when they wrote the 4th Amendment?
iii.    Back yard not private: Expectations that one’s backyard will not be viewed from an airplane for the purposes of viewing it does not render that viewing a search, even if the party intended to keep the back yard private.
iv.    Expectations of privacy with baggage in public places: The fondling of a public bus passenger’s opaque bag in an exploratory manner constitutes a search. Bond v. United States (2000) (officer fondles man’s opaque bag on a bus).
                                                                               (a).      Rationale: Here D obviously expected the contents of his bag would be kept private, and that was a reasonable expectation, as passengers usually do not expect the searching of their bags without warrant.
1.      This may be because touching is considered more intrusive than merely seeing into someone else’s private space.
                                                                               (b).      Note: Unlike Ciraolo, where the question was whether the public could have seen the back yard, the question here is whether the public likely would have manipulated the bag.
e.       Types of factors weighing into decision of whether expectations of privacy deemed legitimate (law):
i.        The intention of the Framers of the Fourth Amendment;
ii.      The uses to which the individual has put a location;
iii.    Our societal understanding that certain areas deserve the most scrupulous protection from governmental invasion.