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Criminal Procedure: Investigation
University of North Carolina School of Law
Kennedy, Joseph E.

CrimPro – Joe Kennedy

Fall 2014

“[I]t is the task of the law to form and project,

as well as mirror and reflect….” J. Marshall (100)

4th Amendment

A. What is a search?

a. Katz (87) (YES search)

i. Person must have exhibited an actual (subjective) expectation of privacy and (2) that the expectation is one that society is prepared to recognize as reasonable (objective

b. US v. White (95) (NO search)

i. Assumption of the risk doctrine

ii. Defendants bear risk of communicating with third parties – they could be government informants

c. Smith v. Maryland (105) (NO search)

i. No actual expectation of privacy in phone numbers dialed; installation and use of pen register does not constitute a search

d. Dog sniff? (113)

i. Caballes: NO search; dogs have limited capabilities

e. Open fields? (114)

i. Hester/Oliver No search

f. Curtilage (116) (YES search)

i. Dunn factors: (1) proximity of the area claimed to be curtilage (2) whether the area is included within an enclosure surrounding the home (3) the nature of the uses to which the area is put (4) the steps taken by resident to protect area from observation by passing people

g. Aerial Surveillance (117) (NO search)

i. California v. Ciraolo: no search because of objective prong; anyone could fly over and see if left uncovered

h. Garbage (121)

i. YES search if inside curtilage

ii. NO search if left by curb, or otherwise outside of curtilage

B. Search/Technology:

a. Kyllo (121)

i. New technology + intimate details (of the home)

ii. thermal imaging devise = search, thus requiring a warrant which the cops didn’t have

b. Beepers (131)

i. Knotts/Karo = no expectation of privacy in public, in car; but expectation in home


i. Trespass + intent to gain information = search

ii. US v. Jones: government’s installation of GPS constitutes a search because it was like a trespass; court takes old approach to search

d. Dog search of porch/curtilage

i. Florida v. Jardines (HANDOUT)

1. physical intrusion (an old school trespass) constitutes a search; Concurrence and dissent would use Katz 2 part test

C. What is a seizure? (148)

a. a seizure occurs when “there is some meaningful interference with an individual’s possessory interest in that property”

b. DNA swab, Maryland v. King (HANDOUT)

c. What cops can seize:

i. Contraband, fruits of a crime, instrumentalities used in commission of the crime, “mere evidence”

D. Probable Cause:

a. Page 151: “Probable cause to arrest exists where the facts and circumstances with

before entering someone’s home to make an arrest (absent exigent circumstances)

ii. 3rd Party’s residence (189)

1. Steagald: cops can’t enter host’s home without a warrant with an arrest warrant for a guest

a. they would need a separate search warrant

iii. Police can arrest anyone in public with probable cause without a warrant

iv. Does not entitle you to search beyond search incident to arrest

F. Search Warrants

a. Warrant clause vs. reasonableness (191)

b. Affidavit: sworn statement by police alleging PC

i. Crime must be sufficiently probable

c. Elements of a valid search warrant:

i. Constitutional specifications

ii. Based on probable cause and supported by oath or affirmation

iii. Neutral and detached magistrate

iv. Particularity

1. Example: Lo-Ji Sales (195): warrant lacked particularity AND neutral magistrate requirement because it was signed while blank AND magistrate was part of search team

2. BUT, some ambiguity is tolerated; police merely need to do their best under the circumstances (198)