Criminal Procedure Outline

CRIMINAL PROCEDURE OUTLINE

WIRETAPPING
I. President Nixon – 1972 à electronic surveillance
a. Government argues they may tap in the name of national security.
b. Court held they must get a warrant b/c surveillance is a search
i. If national security is involved, they may need less probable cause
ii. Only discussing threats by domestic organizations
II. Congress àForeign Intelligence Surveillance Act
a. Foreign threats should still be taken to court, but they go to a special court
i. Secret proceeding
ii. Non-traditional probable cause
iii. Target must be foreign
iv. Must be for intelligence purpose
v. 72-hour retroactive warrant
III. Bush à Patriot Act
a. Argues no need for FISA approval if national security.
IV. Hamdi v. Rumsfeld 124 S.Ct. 2633 (2004)
a. Facts: Hamdi, an American citizen, lived in Afghanistan by 2001; he was seized in 2001 by an military group opposed to the Taliban and given over to the U.S. military; he was taken to Guantanamo Bay, but when they found out he was an American citizen, he was transferred; the government labeled him as an “enemy combatant” and that status justifies the U.S. in holding him indefinitely without bringing formal charges against him; his father filed a habeas petition claiming a violation of the 5th and 14th Amendment and the Non-Detention Act. There was no majority opinion of the court.
b. O’Connor: The initial detention was justified by the AUMF and the Non-Detention Act was satisfied; Hamdi should have the right to counsel and the factual basis for his detention.
c. Souter: If Hamdi was correctly labeled an enemy combat, then his detention under the AUMF would never have been authorized and forbidden by the Non-Detention Act; he should have been immediately released; however, in order to give practical effect, he joined with the plurality.
d. Scalia (dissent): An American citizen accused of waging war should not be imprisoned indefinitely; he should be tried for treason or some other crime.
e. Thomas: Hamdi’s challenge should fail; the Executive Branch acted with explicit congressional approval.

SEARCH AND SEIZURE
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 particularly describing the place to be searched, and the persons or things to be seized.”

I. What is a Search?
a. 4th Amendment: 3 protected interests
i. Privacy
ii. Liberty
iii. Property
b. Two-Part Test: (Harlan’s concurrence in Katz) à Must meet both.
i. Subjective Prong: Subject believes he has a right/expectation to privacy (actual defendant)
ii. Objective Prong: Expectation of privacy that society is prepared to recognize as “reasonable.”
c. Katz v. U.S. 389 U.S. 347 (1967)
i. Facts: FBI tapped phone booth; got evidence to convict Katz
ii. Rule: Court held police must obtain a search warrant before wiretapping a public telephone booth. A search is defined as a governmental intrusion upon a justifiable expectation of privacy.
iii. Harlan’s concurrence sets the standard: the 4th Amendment protects people not places. Set out 2-prong test stated above.
iv. Note: This case overruled Olmstead, which stated that the 4th Amendment was violated only if it involved a physical trespass on the subject’s tangible property.
d. Garbage: California v. Greenwood, 486 U.S. 35 (1988)
i. Facts: Police searched Defendant’s garbage and found evidence of narcotics use; they used this evidence to obtain a search warrant which led to the finding of drugs
ii. Rule: A person has no objectively reasonable expectation of privacy in the contents of trash put out on the street for pickup.
iii. The court assumes the defendant had a subjective expectation. Court applies two theories:
1. Defendant deposited garbage in an area particularly suited for public inspection and public consumption, for the express purpose of having strangers take it; D could have had no reasonable expectation of privacy.
2. The police cannot reasonably be expected to avert their eye from evidence of criminal activity that could have been observed by any member of the public; what a person knowingly exposes to the public, even in his own home or office, is not a subject of 4th Amendment protection.
e. Curtilage v. Open Fields: Oliver v. U.S., 466 U.S. 170 (1984)
i. Open fields do not fall within the 4th Amendment because an open field does not provide the setting for the intimate activities that the 4th Amendment is intended to protect form government interference.
ii. Curtilage is the area to which extends the intimacy of the home. The courts have extended 4th Amendment protection to curtilage, which they provided 4 factors in Dunn to define curtilage:
1. the proximity of the area claimed to be cartilage to the home;
2. whether the area is included within an enclosure surrounding the home;
3. the nature of the uses to which the area is put; and
4. the steps taken by the resident to protect the area from observation by people passing by.
iii. Florida v. Riley, 488 U.S. 445 (1989)
1. Plurality: Court upheld helicopter surveillance of a partially covered greenhouse in a residential backyard from a height of 400 feet, on the ground that there was no reasonable expectation of privacy when any member of the public could legally fly at that altitude.
2. O’Connor’s Concurrence: It depends on the frequency of flights. If frequent, then less expectation. (this opinion prevails)
f. Enhancing the Senses: Kyllo v. U.S. 533 U.S. 27 (2001)
i. Facts: Federal agent used thermal imager to scan defendant’s resident to see if walls were relatively hot, thereby indicating indoor marijuana growing.
ii. Rule: If the police use sense-enhancing technology to obtain information about the interior of the home, and the information could not otherwise have been obtained without physical intrusion, and the technology is not open to the public then it is a search under the 4th Amendment.
1. In other words, technology that replaces physical intrusion and the technology is not open to the public constitutes a search.
iii. Note: This is a search of a private home, which has a higher expectation of privacy; public places have less expectation.
iv. U.S. v. Jacobsen
1. Police may use an on-the-spot chemical test to determine whether an exposed powder is cocaine.
v. The Canine Nose:
1. U.S. v. Place, 462 U.S. 696 (1983)
a. Use of a trained canine to detect drugs in luggage located in a public place does not constitute a “search” within the meaning of the 4th Amendment.
2. IL v. Caballes (2005)
a. Reaffirmed Place and applied to a dog sniff of a vehicle during a traffic stop
g. Effects: Bond v. U.S., 529 U.S. 334 (2000)
i. Facts: During a lawful stop, federal agents walked through the bus and squeezed passengers’ luggage; an agent felt a brick-like object in one bad; Defendant said it was his and gave permission to open it; agent found a brick of meth.
ii. The court’s holding that this was a search under the 4th Amendment relied on 3 principles:
1. A traveler’s personal luggage is clearly an “effect” protected by the 4th Amendment;
2. The government’s reliance on cases as Riley was misplaced because physical invasion inspection is simply more intrusive than purely visual inspection; and
3. While Bond’s bag was not part of his person, travelers are particularly concerned about their carry-on luggage.
iii. Hudson v. Palmer, 468 U.S. 517 (1984)
1. Jails and prisons have no reasonable expectation of privacy. But there is slightly more privacy with body searches.
h. Photographic Magnification: Dow Chemical Co. v. U.S., 476 U.S. 227 (1986)
i. The use of aerial photography of a large industrial plant is not a search under the 4th Amendment, because such a plant is more like an open field that is open to the view of persons in aircraft lawfully in the public airspace above or near the area for the reach of cameras.
II. What is an unreasonable search?
a. The 4th Amendment prohibits unreasonable searches. The traditional rule for reasonableness requires:
i. Probable Cause and
ii. Search warrant or an exception to have one
1. We rarely use search warrants. When you have a warrant, the process for determining probable cause is different than without a warrant.