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Criminal Procedure: Investigation
University of Iowa School of Law
Raymond, Margaret

Criminal Procedure- Table of Contents
Threshold Question: When has there been a search of seizure within the meaning of the 4th am? Katz….2
Unreasonableness and the Probable Cause Requirement- Totality of the Circumstances Test. Gates/Tips….6
Requirements of Warrants…9
Reasonable Searches without Warrants: Exceptions to the Warrant requirement…11
            Exigent Circumstances…13
            Automobile Exception…14
            Inventory Searches….15
            Consent Searches…17
            Plain View….20
Balancing approach in 4th am- Stops based on more and less than PC…. 21
            Stops based on tips…25
Scope of Stops, Searches and Sweeps (time limits on stops, seizures of bags, sweeps of the home)…26
            No taking someone out of home w/o consent …26
            Officers must use least intrusive means and do quickly in Terri stop…27
            Dog sniffs okay… 28
Balancing Context
            Contexts for Higher standards than PC (tissue samples, deadly force) 32
            Due Process, Coercive Investigations and Overborne wills….32
            Miranda and the 5th am privilege against self-incrimination…33
                        Custody(reasonable person feel free to leave)….34
                        Interrogation (express questioning or functional equivalent that police know or                               should have that question likely to illicit an incriminating response)…. 36
            Miranda waiver (totality of circumstances, cannot be inferred)…37
Invocation of Miranda Protections
            Right to silence (scrupulously honored before re-approach. Mosely)…38
            Right to Counsel (can only re-question if suspect initiates. Edwards)…38
6th am Right to Assistance of Counsel (after formal charges attaches automatically, not on arrest)…39
            Waiver (essentially Zerbst waiver)…40
            Deliberate elicitation (does not have to be “interrogation”)…41
Identification/line-ups (counsel required at critical stages)…42
            But required only AFTER initiation of criminal proceedings… 43
            Due process violation if unnecessarily suggestive and likelihood of irreparable        misidentification…44
Exclusionary Rules
            Standing(only those whose rights were violated by search can suppress, only where person            has legit expectation of privacy) (overnight guest can object, business associate    cannot)…45
            Independent Source (prosecution can show by preponderance that independent source/     inevitable discovery, then they can use)…47
            Attenuated (evidence obtained sufficiently attenuated from primary illegality to purge the            taint. Wong Sun. A totality of the circumstances question.)….47
                        Ask and reask post Miranda to get usable confession (not allowed for fruit)…49
            Good Faith Exception (don’t have to exclude where officers act in reasonable reliance on             warrant)… 50
            Impeachment Limitation (can’t use Miranda violative evidence in case in chief, but can use           to impeach, but only of D himself)…52
Criminal Investigation Outline
             I.     Searches and Seizures
A.    Introduction
      1.      4th Amendment:
a.      [unreasonableness clause] “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
b.      [warrant clause] no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly 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.
      3.      Investigation in this class covers “bail to jail. Course will bridge the gap between what the government could do to investigate if there were absolutely no constitutional protections and if the government could only search you with your consent. The constitutional protections about what the government can and can’t do form this middle ground.The key question is how far the government can go in an investigation based on how much information.
B.     What Constitutes a Search Under the 4th Amendment: The Threshold of the 4th Amendment
      1.      Introduction
a.      Whether there is a search is a threshold question. If there is no search, then the protections of the 4th am do not apply.
b.      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.
c.       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. (No 4th amm protection for “false friend”)
d.      Electronic Eavesdropping without Informants

As a party has no legitimate expectation of privacy in information he voluntarily turns over to private third parties (waiver to one is waiver to all) a party that makes phone calls via a phone company entertains no reasonable expectation of privacy and cannot claim protection under the 4th amendment.
ii.      Possible Limitation on rule: The Court notes the possibility that in situations where an individual’s subjective expectations had been conditioned to believe in influences foreign to 4th amendment freedoms, a normative inquiry would be proper (as opposed to the Katz test.
d.      No reasonable expectations of privacy about things the public could see: Essentially, if the item claimed to have been illegally searched would have been plainly visible or audible to the public in a public place, it is not reasonable for him to expect privacy, and is not a search for the police to see it. California v. Ciraolo (1986) (because people in airlplane could see pot growing in backyard, then the police observation was not a search.)
i.        Visual Surveillance Rule: Visual surveillance by the eye alone generally does not constitute a search because it is not any kind of trespass. Police can observe even a protected area as long as their observation location is in a place whether they may lawfully be.
ii.      Use of common technology permissible: If the public could see the item using technology in common use, there is no reasonable expectation of privacy; it is only whether the public could have seen the evidence, not that it likely would have. California v. Ciraolo (1986).
                                                                               (a).      Use of technology not commonly used impermissible:Obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search, at least where the technology is not 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?
2.      The court is worried about advancing technology impinging on privacy of the home.