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

Myers – Criminal Procedure – Fall 2016

The 4th Amendment

Partial v. Total Incorporation

The language of the 14th extends PRIVILEGES and IMMUNITIES of US citizens to those of all the states, thus it TOTALLY incorporates the bill of rights.

Guarantees security in:

Persons – D’s body (interior and exterior) + exterior of D’s body including clothing

– words coming from mouth are not covered as not covered, thus electronic surveillance isn’t a violationà Since REVERSED and can potentially be protected

Houses – any STRUCTURE that people use as a residence on even a temporary purpose

Includes a hotel room if rented
Includes Curtilage surrounding home

“the intimate activities associated with the sanctity of a person’s home and privacies of life” à backyard, structures attached to house (garage), NOT open fields

Includes offices, commercial buildings

Papers – personal items like diaries, letters, business records
Effects – residual component

Luggage, autos, clothing, weapons, fruits of crime
DOES NOT = “PROPERTY”, as does not include real property

Freedom from unreasonable searches and seizures

Reasonableness is key
If it’s not a search or seizure under the 4th Amendment’s definition, then it’s not a 4th Amendment protection

ONLY applies to US citizens, not foreigners even if their property (house) in the US is searched

: Sufficient Ties to US?

Unlawful interest doesn’t count, nor does merely having property
Green card = still protected

Warrant Requirements:

Probable cause
Reliability via oath or affirmation of person providing information

Subject to perjury if they are lying

Particularity of place to be searched and items to be seized

Exact limits on what gov. agents can do to avoid “general” warrants
Essentially states that 14th extends FULL bill of rights to states
14th INCORPORATES BoR in its structure rather than the 4th extending directly to the states THUS exclusion is MANDATORY

used to a way around 4th until incorporation allowed fed bar to apply to states
Exclusionary Rule:

If police conduct unreasonable search/seizure in violation of 4th, then the evidence obtained as a result must be excluded from consideration at trial

Mapp v. Ohio

Exclusionary rule applies to states as well
California has found that ways of enforcing sufficient due process protections haven’t worked, so we should hold that the only meaningful deterrent available is exclusion
Essentially states that 14th extends FULL bill of rights to states

14th INCORPORATES BoR in its structure rather than the 4th extending directly to the states THUS exclusion is MANDATORY

2 Reasons for Exclusion

– must have enough remedy to deter gov from engaging in wrongful behavior
Judicial Integrity – if we as courts use evidence that is known to be a product of “illegal behavior” then it becomes complicit in that behavior by the states

What is a Search?

Katz v. United States

Prior to Katz, SCOTUS treated 4th in a property-based way

à4th didn’t apply without trespass into protected area
àWiretaps used to intercept conversations w/o warrant NOT 4th violation as outside coverage as (1) conversations=intangible and thus not persons, houses, papers, effects (2) wiretap was outside home, so not trespass

Moved towards privacy-based view of 4th

What one KNOWLINGLY EXPOSES TO PUBLIC is not protected by 4th

distinguishes uninvited EYE and uninvited EAR

When in booth, he expected privacy in conversation, not seeing him in there, so the conversation was protected

Harlan’s Test:

Subjective expectation of privacy
This expectation is both socially legitimate and reasonable

Distinguish from cases where suspects statements are gotten WITHOUT electronic monitoring conversations OR by monitoring with consent of one party (False Friend Cases)

False Friend Rule: no reasonable expectation of privacy exists in conversations with other people (false friend), thus, since no reasonable expectation of privacy, there’s no search, and thus there isn’t an UNREASONABLE search so NO 4th PROTECTION

Cases where gov. agent insinuates themselves into confidence of D and they make statements to agent
Cases where agent is wired/has recorder on person and conversations are being heard live or recorded
NO SEARCH OCCURS if informant/agent reports on s

(extreme noise, blow dust)

Kyllo v. United States: limitation on application of technology to search home

: Where police use device NOT yet in “general public use,” to explore details of home previously unknowable without physical intrusion, that surveillance is a search

Factors to Determine if Search

Nature of place and what is observed (remember homes a special)
Steps taken by citizen to enhance privacy (fence, curtains open/closed, etc.)
How intrusive is police activity (pen register=little info provided)?
Degree to which surveillance requires intrusion onto private property
What was the nature of the activity observed (intimate vs. not very private)?

Seizures of Property

Occurs when meaningful interference with individual’s possessory interest in property

Removal from person’s possession

Merely picking something up and then setting it back down after looking through it is SEARCH but not a SEIZURE

Four Categories Gov. Has Right to Seize

– property one has no legal right to possess in first place
Fruits of Crime – money obtained in bank robbery
Instrumentalities of Crime – anything used to commit the crime
Mere Evidence of Crime – even if evidence isn’t contraband, fruit, or instrumentality, if it RELATES TO CRIME in manner that WILL HELP PROVE GUILD of D or demonstrate crime occurred, then that may be seized

Probable Cause

Any time the gov. seeks a warrant (search or seizure), PC is required

in absence of PC is ALWAYS an unreasonable seizure of that person

ALL arrests require PC (with or without warrant)

or Seizure of property is generally constitutionally unreasonable unless done with PC (with or without search warrant)

Subject to exceptions!