CRIMINAL PROCEDURE
FOURTH 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 particularly describing the place to be searched, and the persons or things to be seized.”
I. Is it a “Search” or “Seizure”?
A. Is it Government conduct?
B. Is it a “Search”?
1. Is there a reasonable expectation of privacy? Katz v. U.S. [Tapping public phone booth was a search because he had an expectation of privacy. Majority said f you knowingly expose something to the public it is not protected, but if you are seeking to keep it private the amendment protects you no matter where you are. Harlan’s two-part test from the dissent]:
1) Subjective manifestation or privacy?
2) Is it an interest society recognizes as reasonable?
a. Was it knowingly released to the public? U.S. v. White [D took a risk talking to person who ended up being police informant. Majority said it was not a search because the conversation was knowingly released to the public and not sought to be kept private].
b. Was it knowingly released to a third party? Smith v. Maryland [Applied Harlan’s test; now test for searches. Not reasonable b/c pen register merely recorded number dialed; not a search b/c there is no REP in information conveyed to third parties. 4th Am. privilege is lost when you willingly/voluntarily give it up].
c. Was a sensory enhancement device used?
i. U.S. v. Knotts [Beeper monitoring outside movements of suspect from point of purchase along public roads to his cabin was not a search b/c visual surveillance would have revealed same facts & have no REP in movements along public road].
ii. U.S. v. Karo [Tracking device monitoring inside D’s home was a search b/c info. could not have been obtains from outside the curtilage and D had a REP inside home. Dist. from Knotts b/c there it was voluntarily conveyed to anyone to see]. Private residences = place where a person expects to be free from gov’t intrusion.
iii. Kyllo v. U.S. [Use of thermal imager aimed at private home from public street to detect relative amounts of heat w/in home was a search. The court focused on factors: technology was not available to general public, used to obtain info. Re: the interior of the home and physical intrusion was only other way to obtain the info.
d. Was there a dog sniff?
i. U.S v. Place [Luggage was not opened and did not expose items otherwise hidden not a search b/c merely enhanced what officers could do themselves since you put the smell out there; analogous to Knotts. Only contraband was exposed].
ii. Illinois v. Caballes [Sniffing exterior of trunk of car lawfully stopped not a search b/conduct that only reveals contraband compromises no REP b/c you cannot have a REP in contraband. Extends Place to if item is definitely illegal it is not protected.
e. Open field? [“No Trespassing” signs = subjective expectation of privacy but not reasonable b/c it is easily accessible to the public. Not a search b/c entry onto open fields doesn’t constitute “persons, houses, papers, or effects.”]
f. Curtilage? Curtilage is the area to which the intimate activity associated w/ a person’s home + privacy extends. It may/may not be a search. Look at the Dunn factors to determine whether to treat curtilage more like an open field (never REP) or more like the home (always REP):
1) Proximity of the claimed curtilage area to the home.
2) Whether the area s included within an enclosure surrounding the home.
3) Nature of the use to which the area is put.
4) Steps taken by resident to protect area from observation by passerby.
g. Aerial surveillance?
i. Ciraola; Riley[aerial surveillance of curtilage is not a search b/c there is no REP where public can easily fly over the space and make observation themselves.
ii. Dow Chemical [aerial pictures of industrial complex with conventional camera revealing no intimate details was not a search].
h. Trash? Greenwood [rummaging through garbage left on curtilage is not a search b/c the trash was conveyed to a third party and was readily accessible to the public.
i. Manipulating bags? Bond v. U.S. [pre-consent squeezing of luggage was a search b/c constituted more than purely visual inspection. You have a REP your baggage will not be explored to reveal intimate details of inside contents.
C. Is it a “Seizure”?
1. Property: Was the person denied possessory interest? You have a seizure of property when there is some meaningful interference w/an individual’s property.
a. General rule; 4 items can be seized:
i. Contraband [illegal items]
ii. Fruits of a crime [things that come from criminal activity]
iii. Instrumentalities used in the commission of the crime
iv. Mere evidence [item valuable so
d? The general rule is that a search or a seizure is unreasonable without a warrant.
A. YES, a warrant was issued. àIs the Warrant Valid?
1. Was there Probable Cause?
a. Illinois v. Gates [Totality of the Circumstances Test to determine whether there was enough evidence to support probable cause]:
i. Given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
2. Neutral and Detached Magistrate?
3. Oath and Affirmation?
4. Particularity?
5. Executed Reasonably?
a. Richards v. Wisconsin [If the police do not get consent, then they have to Knock-And-Announce. To justify no-knock and entry must have reasonable suspicion that suspect may escape or that evidence could be damaged. Here, there was reas. susp. To justify the no-knock entry b/c he could have destroyed evidence].
· Reasonable suspicion is more than a hunch, but less than probable cause.
i. Police can forcibly enter after a reasonable time. Most recently the court allowed three seconds.
ii. Officers do not have to show the warrant. If they say they have a warrant and don’t, but you let them in – that is consent. You do not have to know all the facts to provide legitimate consent.
iii. Police can pretend to be someone else to gain voluntary entrance into the home. If they have a warrant, they can search and seize anything in plain view. If they do not have a warrant, they cannot search.
b. Hudson v. Michigan [Court explain the rationale behind the knock-and-announce rule. Court said it was to protect dignity and privacy that can destroyed by sudden entrance. Also allows individual opportunity to comply w/the law and avoid property damage].
c. U.S. v. Banks [The reasonable time depends on the facts known to the officer and what is reasonable from the officer’s perspective].
