Uphoff – Criminal Procedure – Fall 2012
I. The Exclusionary Rule
a. Normal sanction when a government actor violates a person’s constitutional rights.
i. Only applies if the government is the actor acquiring the evidence.
b. Key Cases
i. Weeks v. Ohio – justification for rule is that courts will not be a party to an illegal act. Without such a rule, the 4th amendment would be a nullity so it is constitutionally required. This case only applied to federal officers.
ii. Mapp v. Ohio – the exclusionary rule is applied to the states via the 14th amendment. Court worried that different standards of acceptable police conduct made the rule easy to get around. Also, deterrence is now given as the justification…and this stands today
iii. US v. Calandra – kept exclusionary rule. But stripped it of a lot of it’s Constitutional pedigree. It is a judicially created rule that can be removed when SCOTUS believes it no longer serves a useful deterrent purpose.
1. We are giving up very reliable, very powerful evidence of someone’s wrongdoing. The evil the rule prevents must be worth more…someday it may not be.
2. Society today is suffering loss of convictions for sins of the past.
II. What is a Search?
a. There has to be a “search” (or seizure) for the rule to apply. So this is a threshold question…did the police do something to be a search?
b. Early cases required there be a trespass. Focused on protected PLACES (such as the home).
c. We look at “reasonableness” of the search only after we determine there is in fact a search. But this analysis also has a reasonableness component…don’t confuse them.
d. For there to be a search, there is a two pronged test from Katz Concurrence.
i. There must be a subjective expectation in privacy (not very important)
ii. The expectation must be objectively reasonable (society must be prepared to recognize it…
e. Applies to cases where no party to conversation wants cops listening to the conversation…if one side brings the cops in or tells them what was said no search occurred (false friends doctrine).
f. No expectation of privacy in what we broadcast to others.
i. If they share it with cops, too bad. Much like false friends. This applies to phone records, bank records, etc.
ii. If it is overheard (without use of technology), that’s fine. Trash on the curb…its exposed to the public, cops can go through.
iii. Use of technology to find stuff out, if that tech not in wide use…no-no.
g. Open fields not protected…not a “search” within legal meaning. But curtilage of a home does have some (reduced?) protections.
1. What is a curtilage? 4 factors from US v. Dunn
a. Proximity to home
b. Within a common enclosure with home (ie, a fence)
c. What protections have been set up to exclude others/protect privacy
d. What is it being used for (the intimate activities of home).
h. Summary:
i. Did the suspect have a subjective expectation of privacy?
ii. If so…was it a reasonable one?
1. Voluntary disclosure to third party who passes it on
2. Public exposure
3. Is it in an exception such as open fields or dog sniff?
4. If the court DOESN’T find a privacy interest, does the public lose something it would prefer to protect?
i. Key Cases
i. Katz v. U.S. – THE major search case. Suspect went into a phone booth, shut the door and made a call. Agents had bugged the booth and recorded the conversation. Court was ready to change the law and declared the 4th amendment “protects people, not places”.
1. Harlan’s concurrence becomes more important than the majority opinion. Sets up a two prong test 1) there must be a subjective expectation of privacy. 2) the expectation must be one society is prepared to recognize as “reasonable.
ii. US v. White – Informant is buying drugs from White, he is wired up with a cop in the in the closet. Supreme court reviews Hoffa ‘false friends’ doctrine which predates Katz…decides to leave it undisturbed post-Katz.
1. False Friends – if you tell someone a secret you do not have a “reasonable expectation of privacy regarding what that person does with the information. If it turns out your friend is a cop or a rat, too bad.
iii. Smith v. Maryland – phone company pen register showed the police what numbers a suspect was dialing.
1. Phone company was asked to act on behalf of police, so that is state action.
2. No reasonable expectation of privacy because people know they are transmitting data to the phone company (the numbers dialed are used for billing, people knew that). If the company shares the info with cops, too bad.
iv. Oliver v. US – Open fields doctrine. There is no expectation of privacy in open fields. Nothing happens there courts feel worth protecting. Curtilage does have a reduced expectation of privacy.
v. CA v. Ciraolo – fly-overs (within navigable public airspace)are not searches. Anyone on a commercial flight could see it, so not reasonable to think it is private.
vi. CA v. Greenwood – trash on curb is abandoned and exposed to public. Not a search to go through it. Maybe if within curtilage.
vii. Kyllo v. US – thermal imaging case. Used a thermal camera from public road to see high energy use from high output lights commonly used to grow marijuana. Court said cant use tech not in common public use to learn details inside the home that were not knowable without a physical intrusion.
viii. US v. Knotts police used a beeper in a bottle, installed before the suspect bought with permission of the then-owner. Police used it to follow suspect to a cabin. That was ok, no expectation of privacy in the route traveled on public roads. Even though police used technology, they didn’t learn something they couldn’t have learned without physical intrusion.
1. US v. Karo – similar facts, similar use of beeper. BUT police left the beeper in the bottle and used it to learn when the bottle was removed.
a. That is different…technology was used to learn something about the inside of the house (ie, the contents).
ix. US v. Place – a dog sniff is not a search. It is something unique, and don’t have any expectation of privacy in the odors that waft outside the protected house/effect/person.
III. Standing
a. Next question…if there is a search, then does this person have standing to complain about that violation?
b. You only have standing if YOU were the victim of a violation of the 4th Amendment.
i. If they searched someone else and found evidence on you…you cant complain.
ii. You have to have some kind of interest that is violated (property, possession).
c. Overnight guests have standing. Business guests do not.
i. Everything in between…argue both ways. Is it more like an overnight guest or more like a business transaction.
d. Summary –
i. Continuum – is it more like an overnight social guest or more like a business guest?
ii. Similar issue with cars…what if it is a cab? That’s more like Katz, isn’t it?
iii. Police CAN cross the line, starting with a search suspect has no standing to complain of but going to far.
1. Searched a car he was a passenger in, then opened a bag belonging to suspect.
iv. In general there is tension between Katz “protects people, not places” and the standing doctrine.
e. Key Cases
i. Rakas v. IL – police stopped a vehicle suspect was a passenger in. Found a gun and bullets and used it against suspect. Only those who have had some right v
ed in the “competitive enterprise of law enforcement” to be making the decision whether or not there is probable cause for warrants.
d. Oath and Affirmation
i. The affidavit is assumed valid unless defendant makes a showing that;
1. A false statement was included
2. The false statement was made “knowingly and intentionally” or with “reckless disregard for the truth”
3. The false statement was necessary for the magistrate’s finding of probably cause.
ii. If this is proven by preponderance, warrant is void and fruits of the search will be excluded.
e. Particularity
i. Place to be searched
1. Needs to be enough for officers to locate. Address generally enough.
2. A car may be described by VIN #, or by description of vehicle and it’s location.
ii. Persons or things to be seized
1. Not really all that strictly enforced.
2. Vagueness allowed where hard to be precise (contraband) but not so much for a known stolen item. .
f. Arrest Warrants
i. Don’t need an arrest warrant to arrest a felon on the street
ii. You DO need one to enter suspects home
1. Including a hotel room.
iii. You DON’T need a search warrant to enter suspects home to arrest if you have probable cause to believe suspect is at home (Payton v. NY)
1. Allowable scope of search is any place the suspect could be hiding (closets are ok, dresser drawers are not)
iv. You DO need a search warrant if you are entering SOMEONE ELSE’S home
1. An unlawful arrest doesn’t allow the defendant to get off, it just suppresses the evidence found DURING that arrest
2. Steagald v. U.S. – there is a standing issue. If police enter third party home to arrest suspect he can’t complain about the arrest . The owners can complain if evidence is found and used against THEM.
a. He COULD have standing if there is some sort of relationship like an overnight guest.
3. New York v. Harris – If there is a n unlawful arrest and Suspect starts talking at scene…product of the unlawful arrest and the statements will be suppressed.
a. If he blabs at the station house…wont be suppressed.
g. Execution of Warrants
i. Anticipation of execution
1. Allowed to “freeze the scene” while waiting for a warrant
a. Police must have enough information to warrant a finding of probable cause
b. Have good reason to fear that unless restrained, people would destroy the contraband.
c. Police make reasonable efforts to protect privacy (avoid significant intrusions into the house)
d. Length of seizure is temporary in nature.
2. IL v. McArthur – police had probable cause to believe drugs were in a trailer home. M refused consent to search. 1 officer was sent for a warrant while the other stayed and told suspect he was not allowed to reenter the house without police escort. Police allowed him to go in to get ID and cigarettes, and observed him by doorway without further entrance.
a. SCOTUS said this met all the tests above and was ok.
