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Criminal Procedure: Investigation
University of Oklahoma College of Law
Kolar, Maria

Criminal Procedure Kolar Fall 2017
The Fourth Amendment
Fourth Amendment Violation
1. State actor (or agent): 
Not applicable to private party searches unless working in conjunction with or as an agent of the state – but police can repeat private party search to the same extent as the private party (because no REP)
Includes public employees and law enforcement officers (not security guards)
2. Was there a search?
a. Katz: Reasonable Expectation of Privacy
b. Jones: Trespass
3. Was the search (or seizure) unreasonable?
Balance: rights of individual against private intrusion versus government need
Public school standard: “reasonable suspicion”
Strip search standard: particularized reasonable suspicion
The Incorporation Doctrines: to what extent does 14th Amendment incorporate Bill of Rights?
Total Incorporation (Hugo Black): ALL of rights in Bill of Rights incorporated
Fundamental Rights (Cardozo and Frankfurter): The Fourteenth Amendment’s Due Process Clause does not incorporate any of the provisions the Bill of Rights, but requires states to honor “principles of justice…ranked as fundamental”—which includes some Bill of Rights
Full/Total Incorporation Plus (Murphy, Retledge, Will Douglas): The Fourteenth Amendment’s Due Process Clause incorporates ALL of Bill of Rights PLUS any fundamental rights that fall outside the express language of the Constitution–we’d have this if the 5th Amendment Grand Jury right had been incorporated
Selective Incorporation: not all rights included in the Bill of Rights are absorbed by the 14th Amendment.  But once a right is deemed to be fundamental, it is applicable to the states
Selective Incorporation Plus: What we have today—incorporated all Bill of Rights criminal provisions except 5th Amendment’s grand jury provision, and due process clause also guarantees citizens other fundamental rights
The Norms of the Criminal Process
Four Norms: (1) Accuracy; (2) Fairness; (3) Limited Government; (4) Efficiency
 “The People” – who the Fourth Amendment protects
American Citizens:
In the U.S. – YES
Outside the U.S. – 7th and 2nd Circuits: different rules, but protection YES against American actors
Foreign Citizens:
Living in the U.S. – YES
Lawfully in the U.S. – YES (if there is a “sufficient connection”)
Outside the U.S. – NO
Searches and Seizures
Trespass-Based Jurisprudence
United States v. Jones[1]: was there a physical intrusion into a legally protected area in order to obtain information?
Reasonable Expectation of Privacy
Takes into consideration both the setting observed as well as the vantage point from which the observation was made
Katz v. United States[2]: two part test
1. A person must have exhibited an actual (subjective) expectation of privacy; and
2.  Expectation is one that society is prepared to recognize (objective) as reasonable.
Third Party Doctrine: No REP to information voluntarily provided to third parties, because D assumes the risk that communications with another will be transmitted, electronically or otherwise, to government agents.
Thus, not reasonable expectation of privacy when:
Agents listened in on conversations by hiding in closet and by transmitting conversations by radio device worn by informant
D automatically conveys numbers he dials to a phone company by means of pen register.
An informant (or mole) later reports conversation to government agents.
A mole records or transmits
D provides records to the bank
Suspect is unaware informant speaks and can understand Spanish convo.
D leaves trash for pick up outside the curtilage on curb by the garbage collector
D puts dates and names on outgoing mail (but contents of mail protected)
D chooses license plate numbers
Uses internet and the to/from addresses of email messages sent and websites visited is tracked by a “mirror port”

nd story window with or without neighbor’s permission
NOTE: any building is protected under the term “House”
BUT: buildings that are not actually homes do not get curtilage.
Home: any fixture where someone actually lives is a home and gets curtilage – excludes cars / mobile homes
Technology, GPS and Enhancing Perception
4th Amendment not implicated: where device merely enhances sensory perception and facilitates surveillance that otherwise would be possible without the enhancement. Examples:
Aerial camera
Photographic or video recording
Drug-detection dog in a public airport sniffs luggage (and during car stop unless it prolongs the stop)
But: using dog to sniff home can implicate 4th Amendment
But sniffing person in airport may trigger 4th Amendment
Field tests for narcotics
Electronic tracking device on automobile and monitoring car’s movements on public roads[3] 4th Amendment is implicated:
1. Sense-enhancing technology;
2. Technology not in general public use;
3. To obtain information regarding the interior of the home; and
4. Could not have otherwise been obtained without physical intrusion into constitutionally protected area
Thermal imaging device aimed at private home from a public street to detect relative amounts of heat within the home.
Government installation of a GPS device on D’s vehicle and monitoring the vehicle’s movements after taking it home
[1] 132 S. Ct. 945, 952 (2012).
[2] 389 U.S. 347 (1967) (p. 87).
[3] United States v. Knotts (1983).