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Criminal Procedure: Investigation
University of North Carolina School of Law
Myers, Richard E.

Criminal Procedure Investigation—Myers Spring 2015

I. Incorporation

a. At the time of ratification, the Bill of Rights only applied to the federal government, not the states

i. Through the Due Process Clause of the 14th amendment (nor shall any State deprive any person of life, liberty, or property, without due process of law) the protections of the 4th, 5th, and 6th amendments are applied to the states.

1. Not ALL but most of the protections of the 4th, 5th, and 6th amendments apply against the states.

II. The Fourth Amendment—Introduction

a. Text

i. 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

b. Meaning

i. Basic Framework

1. Did a Search or Seizure occur?

a. If so, was it reasonable?

i. Reasonable if pursuant to a valid warrant

ii. Reasonable if it falls within one of the exceptions to the warrant requirement

b. If no reasonable, must exclusion of the evidence occur?

ii. There are two distinct clauses—the reasonableness clause and the warrant clause.

1. Two ways to read the amendment

a. Searches and Seizures must only be reasonable, not warranted (but warranted searches are one type of reasonable search).

b. Reasonable Searches and Seizures must be supported by Warrants (unless court finds an exception)

iii. The reasonableness clause prevents unreasonable searches and seizures

1. There is a debate about whether or not the reasonableness clause requires a warrant in order for a search to be reasonable, or whether a search can be reasonable absent a warrant, with a warrant merely being one of several indicia of reasonableness.


iv. Our notion of what is reasonable is shaped by what police already get to do

1. It always seems reasonable to let them go one step further, unless they were already at the outer limits of a general rule (warrant requirement)

v. Scope of the Amendment

1. The 4A applies to “the people”. This clearly includes U.S. citizens, but what about others? The Supreme Court has rarely spoken on this.

a. Verdugo-Urquidez—the Court held that the 4A protections do not apply to searches by U.S. agents of property owned by a non-resident alien and located in a foreign country.

2. The 4A does not restrict searches by private parties unless the government instigates or participates in the search.

III. Defining a “Search” Under the Fourth Amendment

a. The Katz Doctrine

i. Fourth Amendment search PREVIOUSLY applied only to physical trespass.

1. Katz states that Fourth Amendment protects people not places

2. Ideas about persons and places inform our expectations of privacy so trespass doctrine operates “within” Katz

ii. Fourth amendment does not translate into a general right of privacy

iii. Harlan Concurrence introduces the “Reasonable Expectation of Privacy” test; the “Privacy on which you justifiably rely”; the things you knowingly expose vs. what you seek to preserve as private. (Reasonable, Justifiable, Legitimate)

1. Two Part Test (Subjective/Objective)

a. Subjective Expectation of Privacy: You did not hold the information out to the public, but kept it private

b. Objective Expectation of Privacy: In a way that society accepts as reasonable; social expectations of privacy

iv. The definition of a search both mirrors/reflects and forms/projects what we consider to be private (See e.g. Harlan Dissent in United States v. White)

v. Following the S.Ct. decision in Jones it appears that the trespass approach to defining a search exists alongside the Katz REOP test.

b. Other Considerations Affecting the Definition of “Search”

i. Third party/Assumption of the Risk Doctrine

1. There are degrees of privacy and degrees of exposure, and one might chose to forfeit some of her freedom of exposure without thereby forfeiting all of it

ii. Open Fields Doctrine—police entry of an open field does not implicate the 4A (Hester v. United States)

1. An open field includes any unoccupied or undeveloped area outside of the curtilage; it need neither be “open” nor a “field” as those terms are used in common speech. (Oliver v. United States).

a. An asserted expectation of privacy in open fields is not an expectation that “society recognizes as reasonable”

iii. Curtillage—

1. determined using a four factor “test” (United States v. Dunn); ultimately these factors are just analytical tools to determine whether the area on question is so intimately tied to

ution in the belief that an offense has been or is being committed by the person to be arrested.

ii. Standard is the same for search except replace the italicized language with evidence subject to seizure will be found in the place to be searched.

iii. Probable cause is need to obtain a warrant which makes a search or seizure presumptively reasonable.

1. Search or seizure without a warrant requires heightened probable cause

iv. Only the probability, not a prima facie showing of criminal activity

v. Court will uphold magistrate finding of PC as long as there is a substantial basis for finding PC

vi. Warrant requires the oath or affirmation

1. Defendant may challenge the ptruthfulness of statements made under oath in an affidavit supporting a warrant under limited circumstances (Franks v. DE)

vii. Probable cause not reduced to a numerical proportion, but less than 50% is good enough. DOES NOT HAVE TO BE “MORE LIKELY THAN NOT”.

viii. Probable cause is an objective standard—an officer’s state of mind is irrelevant to the existence of probable cause.

1. Devenpeck—an arrest is lawful even if an officer arrests for crime A when the probable cause is actually for crime B.


b. Probable Cause bases on Informant’s Tip

i. Whether the informant tip is sufficient for probable cause is dependent on the TOTALITY OF THE CIRCUMSTANCES

1. Court should consider both the reliability of the informant (track record) and the basis of the informant’s information

a. HOWEVER now the strength of one factor can make up for another.

2. Citizens are presumed reliable while criminal informants must have a track record of reliability

a. Informants can be anonymous (nobody knows the identity) or confidential (identity is known to the police)

i. McCray v. Illinois held that judge has the discretion in probable cause and evidence suppression hearings to deny request to compel disclosure of informant identity