Criminal Procedure
Investigative Procedures
Phillips – 2007 – Spring
I. DOES THE 4TH AMEND APPLY TO THE KIND OF CONDUCT?. 2
A. Was the action by the GOVERNMENT?. 2
B. Was the action Technically a Search or Seizure?. 2
II. DOES THE 4TH AMEND PROHIBIT THE KIND OF CONDUCT?. 5
A. Was there a Warrant?. 5
B. Was a Valid Warrant Properly Obtained?. 5
III. Exceptions to the Requirements of Probable Cause and a Warrant.. 11
A. PRE-TEXTUAL SEARCHES AND SEIZURES. 11
B. WARRANTLESS ARRESTS. 11
C. STOP AND FRISK.. 13
IV. SEARCH INCIDENT TO ARREST – THE ARREST POWER RULE. 20
A. AUTOMOBILE EXCEPTION.. 21
B. THE PLAIN VIEW AND PLAIN TOUCH SEIZURES. 23
C. EXIGENT CIRCUMSTANCES. 24
D. ADMINISTRATIVE AND REGULATORY SEARCHES AND SEIZURES. 26
E. CONSENT SEARCHES. 27
V. REMEDIES FOR 4TH AMEND VIOLATIONS.. 29
A. THE EXCLUSIONARY RULE. 29
B. STANDING TO INVOKE THE EXCLUSIONARY RULE. 29
C. EXCLUSION OF “THE FRUIT OF THE POISONOUS TREE”. 29
D. “COLLATERAL USE” EXCEPTIONS TO THE EXCLUSIONARY RULE. 31
E. THE “GOOD FAITH” EXCEPTION TO THE EXCLUSIONARY RULE. 31
VI. THE PRIVILEGE AGAINST SELF INCRIMINATION.. 33
A. SCOPE OF THE PRIVELEGE. 33
B. WHAT IS COMPULSION?. 33
C. IDENTIFYING THE HOLDER OF THE PRIVILEGE. 34
D. INFO PROTECTED BY THE PRIVILEGE. 34
E. PROCEDURAL ASPECTS OF SELF-INCRIMINATION CLAIMS. 35
II. SELF-INCRIMINATION AND CONFESSIONS. 35
A. CONFESSIONS AND DUE PROCESS. 35
B. THE SPECIAL FEDERAL STANDARD FOR CONFESSIONS. 36
C. MIRANDA / 5TH AMEND LIMITATIONS ON CONFESSIONS. 36
D. CONFESSIONS AND THE 6TH AMEND.. 42
VII. CONSTITUTIONAL LIMITATIONS ON I.D. EV. – (LINE UPS)42
A. POST-INDICTMENT I.D.S. 42
B. PRE-INDICTMENT I.D.S. 43
C. DUE PROCESS LIMITATIONS ON SUGGESTIVE I.D.S. 43
VIII. THE RIGHT TO COUNSEL.. 43
A. BASICS OF THE RIGHT TO COUNSEL. 43
I. DOES THE 4TH AMEND APPLY TO THE KIND OF CONDUCT?
A. Was the action by the GOVERNMENT?
The 4th Amendment only applies to action by the government or its agents.
B. Was the action Technically a Search or Seizure?
1. Consequence of finding a “search” or “seizure” – The consequence of finding a search or seizure is merely that the government is required to act reasonably, whereas the consequence of not finding a search or seizure is that gov’t officials can act unreasonably and arbitrarily.
2. Seizures and Searches Implicate Different interests-
a) Seizure
(1) A seizure threatens the interest in retaining possession of property
(2) It is usually preceded by a search. When a container is involved, the converse is true.
b) Search
(1) A search protects the interest in maintaining personal privacy.
3. “Search” and “seizure” determined by Katz Test – Courts decide whether government activity rises to the level of a search or seizure by examining a citizen’s legitimate expectations of privacy using the two-pronged test in Justice Harlan’s concurring opinion in Katz:
(1) Has the citizen manifested a subjective expectation of privacy: this is conduct by the individual to keep it private, requires affirmative action on his party
Ex. Abandonment of property is not protected. Abandonment is often found when a person denies ownership of a container in the fact of police inquiries. Abandonment is akin to standing, if you say it is not yours, it is abandoned.
(2) Is the interest one that society is prepared to accept as reasonable: means what does the court think is legitimate.
4. Factors going to a reasonable expectations of privacy after Katz – Citizens have at least three reasonable privacy and possessory interests: (1) being free from physical disruption and inconvenience, (2) an interest in secrecy, because certain information may be personal or embarrassing, and (3) possessory interests, courts have required citizens to take vigorous measures to protect their claimed privacy interests.
a) Open Fields: no expectation of privacy; unless within curtilage; observation only
1. No Expectation of Privacy: Society does not recognize as legitimate privacy for anything out-of-doors. If the public can do it, the police can do it. You are only protected in your house with your curtains drawn. This means that police can look into your barn or home through a window.
2. Observation Only: This open fields doctrine only allows “observation searches”, not touching or digging
3. Unless Within Curtilage: But if the property falls w/in the curtilage (area immediately surrounding your house), then there will be a search if the citizen has manifes
ordinarily had access to the info – i.e. expensive or sophisticated equipment. Business privacy. Ordinary overflights. Slim margin on hovering. The mere possibility of public access is not enough to render a privacy expectation unreasonable. O’Conner said test is if public ordinarily had access to the info, or if it was legally possible for the member of the public to obtain it.
(11) Reopening a package: that was originally opened consistent with the 4th (i.e. opened by private citizen) will not be search if the gov’t reopens it, so long as inspection does not exceed the scope of the original opening or the contents were changed.
(12) Manipulation of luggage: is protected; Bond- a bus passenger expects his bag may be handled, but not that other passengers or bus employees will feel the bag in an exploratory manner. Your luggage is your effects. When you are dealing with bags, there is clearly an expectation, there are intimate objects, that is specifically protected (as a place).
c) Inspection limited to uncovering illegal activity: is not a search because there is no legitimate privacy interest in it.
(1) Stages of detainment
a. Encounter- you are free to go about your business
b. Stop= have to have reasonable suspicion (cannot exceed scope).
c. Arrest- probable causes.
(2) Length of detainment
a. Once they get probable cause, they can detain you for as long as it takes to get a warrant.
b. The length of detainment cannot be greater than the scope of the stop.
Canine sniffs: are sui generis (limited both in the manner in which the info is obtained and in the content of the info revealed by the procedure.) only disclose the presence or absence of narcotics; thus they do not constitute a “search”. However, detaining luggage 90 minutes to wait for dog is an unreasonable seizure. No search if dog sniffs sleeping compartment.
