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Criminal Procedure
University of Kentucky School of Law
Fortune, William H.

Criminal Procedure Fortune Fall 2014

-Answer Questions Chronologically

· Remember what is being accomplished (i.e. suppression of evidence)

Fourth Amendment Protections


à4th 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.

General warrants allowing searches w/o evidence or particularity are prohibited

-State Constitutions can supplement the 4A .

State protection is only effective against state and local government.

-4A Protects: Privacy Interest, Possessory Interest, and Liberty of Person

Privacy Interest

-Privacy Interest depends on whether the person intends to keep something private.

4A Search occurs when:

Target has a subjective expectation of privacy; and

Target seeks to preserve something as private

Society is willing to recognize that expectation as reasonable

Target’s expectation viewed objectively is justifiable

Not whether he is located in public or private.

4A protects private communication at home, work, telephone both, or even a cab.

Business and commercial property is protected by privacy interest

Prison cell receives no 4A privacy protection.

4A does not protect public communications, even if made at home.

Public Communication = no reasonable expectation of privacy

No reasonable expectation of privacy if:

Activity or info could be observed by a 3P.

Even if 3P was supposed keep info confidential.

Rationale: Expectation of privacy is not based on Δ’s attempt to conceal but rather on if the government intrudes on a societal value.

Examples: Trash on the curb, numbers dialed on Δ’s home phone

Curtilage v. Open Field

Curtilage: Property around ones home that is considered part of the home (4A protects)

However, an activity viewable by a plane flying over it is not protected.

Open Field: Property w/o structures built upon it is not protected from 4A

Even if there are fences and signs its unreasonable to expect privacy

Police can go on to field and search without a warrant and not violate 4A.

Still a trespass in tort.

Ex: Crops in a field can be inspected without a warrant.

Means of Detection – Privacy and Technology

Not 4A violation to use natural senses to detect evidence (e.g. smell).

Regardless of whether enhanced by normal means (e.g. glasses, flashlight).

Limit: Police must be lawfully located at time of detection.

4A violation to use specialized tools (e.g. thermal imaging) to enhance senses to detect.

Specialized tools = technology not available to the general public.

Unsuccessful Gov’t Counter: Public knows police have high tech devices so it is unreasonable to expect privacy.

Additional Means of Detection:

Canine sniffing for drugs is not a 4A search.

Rationale: dog only detects contraband so non-contraband is private.

Aerial photo taken from a plane is not a 4A search.

Yet, more advance technology (e.g. satellite) is not allowed

Placing a GPS tracking device on a car violates the 4A.

Yet, may place a GPS inside something suspect accepts into his custody.

Test: 4A does NOT protect b/c there is no reasonable expectation of privacy if:

Δ is aware of what is detected (e.g. heat, smell); and

Δ is aware of detection device; and

Device was not unlawfully located on Δ’s property.

Rationale: An unlawful seizure, even if search would be lawful.

Search Warrants

-Warrants are required in order to interpose a magistrate between zealous cops and citizens.

Issuing a Search Warrant

-Test: Requirements of issuing a search warrant:

1. Magistrate Requirement; and

1. Magistrate must be neutral and detached; and

§ AG cannot act as the magistrate.

§ Magistrate cannot have a financial incentive to grant warrants.

§ Magistrate cannot participate in the search

§ However, magistrate can know the Δ

2. Magistrate must be capable of determining if probable cause exists.

§ Magistrate does not need to be a lawyer.

· Ex: Court clerk can act as magistrate for violation of city ordinances.

2. Warrants must be supported by a finding of PC; and

o See PC determination section.

3. Particular description of:

o Place to be searched; and

§ Specific enough to allow the officer with reasonable effort to identify the place.

§ Courts are fairly lax and will look at whole warrant to see if location is id.

· If cops cannot tell that a location is split into multiple apartments then:

o Warrant is valid even though it does not list specific apartment.

· If location does not exactly match the warrant then:

o Police can use surrounding facts to determine the location.

§ Ex: Door is supposed to say #2 and John Smith but John Smith is


o Magistrate must also read affidavit for it to be considered for PC

· False info in an affidavit will cause the warrant to be voided if:

o Intentionally, knowingly, or recklessly made; and

o The remaining correct info alone is insufficient to support a PC finding.

· Information that is unlawfully obtained cannot be considered for PC

· PC must be specific with respect to the person to be searched or seized.

o Proximity to others suspected of criminal activity does not give rise to PC.

o However, if person is connected to the criminals then PC may exist (e.g. same car)

-Reviewing court must only:

· Ensure that the magistrate had a substantial basis for concluding that PC existed.

-Timing Issues:

· Stale Warrants: Must have PC the evidence will still be located at the specified location.

o Cannot be such a length of time that evidence is probably no longer located there.

· Anticipatory Warrants: Only if a specified condition occurs will the object be on the premises, so only then PC exists and the warrant becomes effective.

-Informer’s Privilege

· Police officer is not required to identify an informer’s identity if:

o Informer’s info regards PC (not guilt or innocence) determination; and

Police relied in good faith upon credible information supplied by a reliable informant

Execution of Warrants

Time of Execution of Warrants

-Time of execution of warrants has two main limits:

· Statutory Limit: Statutes require warrants to be executed within a certain time (e.g. 10 days)

· Constitutional Limit:

o PC recited in the affidavit must continue until time of execution.

§ Consider intervening knowledge of the officers and the passage of time.

Warrants should be executed during daytime unless warrant states otherwise due to:

§ Evidence is definitely in the place to be searched; or

§ Some need for prompt action; or

§ Search for controlled substance on the property.

-Sneak-and-Peak Warrants:

· Authorizes police to enter property and look around but not to take anything.

· Notice of search can be delayed so he is not aware the search occurred if:

o Reasonable necessity for delaying notice; and

o Notice is given within a reasonable time after the search.