Criminal Procedure Outline

 
Criminal Procedure, Professor Dripps, Fall 2013
 
4th AMENDMENT
I. Introduction
– The 4th represents a compromise between the need of Gov. officials to gather evidence and the right of citizens to be free from gov intrusion. The 4th protects against unreasonable searches and seizures. Unless the gov activity is either a search or a seizure, it is not regulated by the 4th and therefore does not have to be reasonable.
 
II. REP
a. A search occurs whenever the state intrudes in any way upon the individuals protected interest in privacy. The 4th only protects areas where one has a reasonable expectation of privacy. Interests REP is designed to protect include physical disruption and inconvenience, an interest in secrecy, and possessory interests. If an aspect of a person’s life is subject to the scrutiny by members of the public, then that person has no legitimate expectation in denying equivalent access to the police. There is no search if the police obtain information accessible to members of the public.
b. A seizure is triggered whenever the state intrudes in any way on a protectable individual interest in property or security.
*JUSTICE HARLAN concurrence in Katz: a search occurs when: citizen needs to manifest subjective expectation of privacy and the interest is one that society is prepared to accept as reasonable.
c. Examples of areas where no REP: bank records, telephone pen registers, trash, wastewater discharge.
 
i. Aerial Surveillance
– 4th does not apply to the police conduct because the aerial overflight was not a search because members of the public could fly over area and view the activity so can not reasonably expect to exclude the police from doing so.
 
ii. Limitations on Public Access theory
– hotel rooms: paying guest had reasonable expectation of privacy in motel room and therefore police entry into room is a search
 
iii. Investigation of Illegal activity is not a search
– there is no legitimate privacy interest in illegal activity. if certain mode of investigation can only uncover whether or not illegal activity exists, and cannot disclose innocent activity, then the investigation is not a search because it does not implicate any secrecy interest protected by the 4th.
 
a. Dog Sniffs
– sniff is not a search because it can never disclose a protected 4th secrecy interest. However, a seizure of property implicates the 4th amendment. seizure could be reasonable if officers have PC to detain. Even if sniff is positive and seizure giving rise to the sniff is reasonable, it does not follow that the officers can open it.
 
b. Sensory Enhancement Devices
-the use by officials of devices which aid their investigation by enhancing the senses does not constitute a search, so long as the devices do no more than aid the police in obtaining information that they could have obtained through their own sensory perception.
          i. Beepers: the use of the beeper is not a search because the information obtained consisted only of public movements, as to which there is no REP. also, the beeper does no more than what could be done through ordinary sensory perception. It may be a search if police installation of the beeper is trespassory, or if it is used to obtain private information that they could not obtain through own sensory perception.
– includes: flashlights, binoculars, microphones, high-tech cameras.
* Dow chem: if the D has no privacy interest in information to begin with, the use of enhancement device is not a search, even if it gives officer info he could not otherwise gain through personal perception. The mode of investigation can make no difference to the citizen if has not right to privacy protection in the first place.
 
ii. Thermal imaging devices
-the use of the device was a search protected by the 4th amen because the device obtained info that could not have otherwise been obtained without physical intrusion into constitutionally protected area. The device is used to detect info inside the home.
 
iii. GPS Tracking Device
-warrantless placement of GPS tracking device on suspect car and subsequent monitoring of car movements was a search and violated the 4th.
 
* JONES
-majority by Scalia: the gov physically occupied private property for the purpose of obtaining information. “whatever new methods of investigation may be devised, our task is to decide whether the action would have constituted a search within original meaning of fourth”
– SOTOMAYOR: with the growth of and improvement in technology, the gov may be capable of engaging in GPS type monitoring by relying on factory or owner installed vehicle tracking devices or GPS enabled smartphones thus raising the issue of surveillance without physical trespass that triggered the protection established in majority. Careful analysis even when short term monitoring because reveals details about persons familial, political, etc associations. Might need to reconsider premise that individual has no REP in info voluntarily disclosed to 3rd parties= ill suited in digital age in which people reveal a great deal of info about themselves to 3rd parties in the course of carrying out mundane tasks.
-ALITO: if the installation and the use were regarded separately it is unclear whether either is a search, and that no seizure occurred given the GPS device did not interefere in any way with the operation of the car. Katz rejected trespass approach to the 4th and argued Katz avoids problems posed by trespass. Key question is to ask whether the use of GPS tracking in a particular case involves a degree of intrusion that a reasonable person would not have anticipated. Short term monitoring of movement on pubic street accords with REP that our soceity has recognized as reasonable and longer term most offenses impinges on REP
 
iv. Open Field
– area that is beyond the curtilage is not protected by 4th. If property is within the curtilage, then owner has REP- an intrusion into the curtilage will be a search if citizen has manifested an REP.
-4 Dunn factors: distance between the home and the area claimed to be curtilage, whether the area is within a fence or enclosure that surrounds home, whether the use to which the area is put correspond to those ordinarily conducted in home, steps taken to protect the area from public.
 
 
III. Probable Cause
– a search or seizure is presumptively unreasonable unless supported by PC and a warrant. standard of proof that justifies a search or seizure. A showing of PC permits intrusions into citizens interests in privacy and security. Strikes a balance between the rights of innocent citizens to privacy and security, and the interest of the state in investigating and prosecuting crime. The standard of proof is enough particularized facts to lead a common sense person to believe that there is a fair probability of criminal activity.
          -no requirement of certainty, innocent explanations for activity does not preclude finding of PC, allowed reasonable mistakes, totality of circumstances, offense establishing PC does not have to be closely related to the offense identified by the arresting officer at time of arrest, particularized information required, prior criminal record makes stronger.
 
a. CI
i. Aguilar-Spinelli test
          1. reliable informant
                          -person providing the info must be reliable and credible. Police officers, citizen-informants, informants with track records
          2. personal knowledge
                          – the source must have personal knowledge of the facts- could also have wealth of detail
– corroboration can remedy a defect in one or both prongs
 
ii. Totality of Circumstances
-under the totality of circumstances that PC exists.
-if fails both prongs, and there is no police corroboration of the information, the tip is insufficient for PC.
 
IV. OBTAINING VALID SEARCH WARRANT
– generally the 4th requires every search or seizure to be made pursuant to a warrant issued upon PC. A warrant is a document issued by judicial officer, authorizing a law enforcement official to make a search or seizure. The judicial officer is usually a magistrate. All warrantless searches are presumed unreasonable under the 4th unless a recognized exception to the warrant requirement applies
          – neutral and detached magistrate: cannot be law enforcement official, conducting search destroys neutrality, contingent fee destroys neutrality, can be a court clerk
          – particular description of place to be searched: warrant is invalid if the location is not described with reasonable particularity. This requirement is designed to protect against the use of a warrant as a general warrant.
          – particular description of things to be seized: rationale is to control the discretion of the executing officer and protect against general rummaging. The test of whether a description of things to be seized is sufficiently particular is one of reasonableness, determined by the info that police could reasonably be expected to know prior to the search.
 
i. EXECUTION of search warrant
– the 4th does not contain specific language directing law enforcement agents on correct procedure for executing warrant. However, the general clauses requiring PC and reasonableness have been interpreted as placing constitutional limitations on the manner in which agents perform those duties.
          -staleness: whether the information on which PC was originally based has grown stale is dependent upon nature of crime, type of evidence and length of time passed. Search would be unconstitutional if delay in executing warrant means that PC which existed when warrant was issued is gone by the time warrant is executed.
 
i. Notice
– may enter premises if after notice of authority and purpose, is refused admittance or when necessary to liberate himself or person aiding in execution of the warrant. Notice decreases potential for violence as occupants are made aware of law purpose and presence, decreases po