Crim Pro (Investigation) Outline – Graham Strong, Spring 2015
Highlighted means Summary of current law.
The Exclusionary Rule
(a) Weeks v. United States (SCOTUS, 1914)
– Federal government can’t search w/o warrant AND (Exclusionary Rule) applies to Feds.
i. Reasoning: Judicial Integrity
(b) Mapp v. Ohio (SCOTUS, 1961)
– States can’t search w/o warrant, and Exclusionary applied to States.
i. Reasoning: Deterrence of bad behavior by police & some judicial integrity, mostly deterrence.
What is a search that requires a warrant?
(c) Katz v. United States (SCOTUS 1967).
– from physical intrusion test to expectation of privacy and reasonableness of that expectation test. (the trouble with eavesdropping).
(d) United States v. White (SCOTUS, 1971)
– Informants don’t need a warrant, so their wires don’t either. NOT a search when cops send traitor into a thieves’ den, because there is no reasonable expectation that a person won’t betray you.
(e) Smith v. Maryland (SCOTUS 1979).
– metadata that you turn over to companies/third parties has no expectation of privacy! (like the phone numbers that you dial). Applied Katz test and found no reasonable expectation of privacy.
(f) California v. Ciraolo (SCOTUS, 1986).
– Cops can’t look over your 10 ft fence without a warrant. but they can fly over your yard and observe without a warrant. Case frames the Katz question in a technical way: Privacy expectation against “what”? [what kind of observations/intrusions] (ground level observations and intrustions, observations from air, etc.)
(g) United States v. Knotts (SCOTUS 1983)
– Attaching tracking device to item that moves in public space is OK because team of agents could coordinate and get the same info, so why not let agents use technology to achieve the same end? And because no expectation of privacy to something moving in public space. Also, this “beeper” wasn’t attached in a way that involved trespass onto “constitutionally protected ground” such as “home, person, papers, affects.”
Knotts was different from Jones because the beeper was installed on the container before the container was in possession of suspect.
(h) United States v. Jones (SCOTUS 2012)
TRESPASS TEST REVIVED!!! – When police attached GPS tracker to Jeep, physical trespass was violation of 4th Amd. Katz didn’t kill property law analysis, Katz provided for additional safeguards. So now test is two part…
Current test per Jones for what is a search under the 4th. Amd. and thus what needs a warrant or a warrant exception.
A. Physical intrusion to obtain information onto a “constitutionally protected area” (like home, person, papers, effects)
· 1. Did Government physically intrude . . .
· 2. upon a “constitutionally protected area” . . .
· 3. for the purpose of obtaining information?
· IF SO —- you have a 4th Amd. search.
· IF NOT —– Look at Katz (Katz includes situations even where you don’t have physical intrusion). It still could be a search under Katz.
B. Did person exhibit subjective expectation of privacy, and is that expectation one that society is willing to accept as reasonable?
· Katz test – 1. did person have an actual expectation of privacy? AND
· 2. is society ready to recognize that expectation as reasonable?
What is a search that requires a warrant? (continued… specialized cases)
Luggage in public arena…
(b) Bond v. United States (SCOTUS 2000)
–- Police can’t feel up your bag, even when traveling on bus or airplane and it would be exposed to public groping, without search warrant.
(c) NOTE: The application of Bond is muddied by Warrant Exceptions.
Technology & the Home…
(d) Kyllo v. United States (SCOTUS, 2001)
— “We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical ‘intrusion into a constitutionally protected area’ constitutes a search – at least where (as here) the technology in question is not in the general public use.” In Kyllo, information obtained by thermal imager was product of a search (and required a warrant).
Drug Dogs & the Home… (Property law & 4th Amd. intersect)
(e) Florida v. Jardines (SCOTUS 2013) (Seemingly at odd with Whren… but not)
— Trespass test is expanded a little to ask whether there was trespass onto constitutionally protected ground, even onto a place where the public often has an implied license to be – the front porch of a home. But… cop does NOT have implied license to be there because the implied license would not extend to the drug dog’s & cop’s purpose of searching where for example the implied license would extend to a member of the public who only intends to visit or speak with the occupant. Because an implied license in this scenario is dependent upon the subjective purpose of the visitor… the cop’s intention of searching comes into play. Cop could do what public does: call on and speak with owner at front door. BUT, he can’t bring dog onto property for purpose of search. Tough case……..
Questioning the Validity of the drug dog….
(f) Florida v. Harris (SCOTUS 2013)
– Totality of circumstances test should be used to determine whether a specific drug dog is reliable enough to provide probable cause upon alerting to handler. Also, a verification by a trained drug-sniffing dog IS sufficient to provide probable cause.
i. ISSUE: How should a court evaluate whether a drug dog’s alert provides probable cause to search?
ii. HOLDING/REASONING: The Florida Supreme Court’s using the dog’s history of errors as a gold standard is too inflexible. A recent certification or training program that the dog passed is a significant factor, but the court is allowed to consider the “totality of circumstances.” Simply put, there is no gold standard evidence that can dispose of this issue. Judge must take a flexible approach.
iii. NOTES: A verification by a trained drug-sniffing dog is sufficient enough to provide probable cause.
What about dog sniffs in general?
Illinois v. Caballes, 543 U.S. 40
he duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for . . . conclud[ing]’ that probable cause existed.”
Good way to examine problems:
threshold question: was it a “search”
1st T q: was it government agent? Was he “investigating”?
2nd T q: Does it need a search/arrest warrant?
3rd T q: Exception to warrant?
How does an officer’s subjective intent affect probable cause? IT DOESN’T!!!!!
1. Whren v. United States (SCOTUS 1996)
– “subjective intent alone does not make otherwise lawful conduct illegal or unconstitutional.” An officer’s mindset, except for the facts he knows, does not affect 4th Amd. constitutionality. Using traffic stop as pretext to investigate for drugs is fine.
If you are arrested without probable cause for particular offense but committed other offenses at same time, can the government later rely on probable cause of other offenses to justify the arrest? Yes!!
2. Devenpeck v. Alford (SCOTUS 2004)
— The named offense for the arrest does not have to be supported by probable cause, so long as another offense for which there was probable cause for arrest is presented after the fact to validate the arrest.
Example: Cop says arresting for drug possession. But judge finds later no prob. cause for this. Prosecution can validate the arrest later by showing cop also saw you turn without using your signal.
(a) QUICK FACTS: Cop suspects man is impersonating officer. He stops him but then arrests man for violation of Privacy Act, instead, because cop discovered man was recording traffic stop. Later judge finds arrest not supported by Privacy Act. no prob. cause. BUT, judge also says arrest supported by probable cause to believe impersonating an officer offense was committed, though cop at the time of arrest said he was arresting for violation of Privacy Act and did not say anything about offense of impersonating an officer.
How does probable cause and multiple suspects intersect? (For instance, if cop pulls over three people, and there is large quantify of drugs and money in the car, can he arrest all three?)
YES!!! Maryland v. Pringle (2003) — As it is an entirely reasonable inference from the facts here that any or all of the car’s occupants had knowledge of, and exercised dominion and control over, the cocaine, a reasonable officer could conclude that there was probable cause to believe Pringle committed the crime of possession of cocaine, either solely or jointly. Reversed and remanded.
