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Criminal Procedure
University of Toledo School of Law
French, Bruce J.

I. Introduction
 
II. Search & Seizure
A. Introduction to the Fourth Amendment
·         Fourth Amendment: 
◊    reasonableness clause: “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated,”
◊    warrants clause: “and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to searched, and the person or things to be seized.”
 
B. What is a Search?
·         definition: a search or seizure is an action by the state that violates an individuals reasonable expectation of privacy (REOP)
◊    two-part test attributed to Harlan, J., concurring in Katz (41):
§ person must have exhibited an actual (subjective) expectation of privacy
§ society must recognize that expectation as reasonable
◊    ∆ had REOP
§ content of conversation conducted in public telephone booth with closing door (as opposed to simply being observed having a conversation)—∆ sought to exclude “the uninvited ear” not the “intruding eye” (Katz, 1967—38)
§ agent’s manipulation of ∆’s luggage (placed in space) far exceeded the casual contact ∆ could have expected from other passengers (Bond, 2000—58)
◊    no REOP where ∆ exposes something to the public (i.e., public access = no REOP)
§ consensual electronic surveillance
*        US v. White (US 1971 – 50): ∆ had no REOP in conversations with government informant who was wearing a concealed radio transmitter
›          “one contemplating illegal activities must realize and risk that his companions may be reporting to the police”
*        US v. Gonzalez (9th Cir 2003 – 51): ∆ had no REOP in behavior caught on hidden camera installed (with hospital’s permission) in hospital mailroom; mailroom was large, “quasi-public” space, with large windows allowing those outside to see what was going on within
§ financial records
*        no REOP in bank records—they are made accessible to the bank, so no reasonable expectation that they would not be revealed to the government
§ pen registers
*        no REOP in numbers dialed from home phone—no legitimate expectation of privacy in information he voluntarily turns over to third parties (e.g., the phone company)
§ trash
*        no REOP in contents of trash bags left on curb for garbage collector—readily accessible to the general public (California v. Greenwood, 1988—54)
§ drug detection
*        canine sniff is not a search because it does not expose non-contraband items that would otherwise remain hidden from public view and there is no REOP in hidden possession of contraband (Place, 1983—61)
*        chemical test that exposes whether a substance is an illegal narcotic is not a search (Jacobsen, 1984—63)
*        urine test is a search because it can reveal innocent secret information and providing a sample is intrusive and embarrassing
§ aerial surveillance
*        aerial surveillance of ∆’s fenced-in backyard is not a search because members of the public may lawfully observe ∆’s backyard from above (Ciriallo, 1986—56)
*        hovering over ∆’s property in helicopter is not a search because there is no law prohibiting such activity (Riley, 1989—57)
*        aerial surveillance using high powered camera is a search where ∆ maintained elaborate ground security and investigated low over-flights (Dow Chemical, 1986—56, 76)
§ electronic beepers
*        use of electronic beepers to track public movements is not a search (Knotts, 1983—72)
*        use of electronic beeper to determine whether something is in a private place (e.g., a home) is a search (Karo, 1983—72)
›          however, proper use of the beeper to track movement outside the house along with knowledge obtained by other lawful means is likely to be sufficient to get a warrant
§ new technologies
*        aiming uncommon (i.e. not widely in use among the public) high-tech devices at certain places (e.g. the home) is a search (Kyllo, 2001—65)
 
C. The Tension Between the Reasonableness and Warrant Clauses
·         warrant-less searches are presumably unreasonable unless there is an applicable assumption (i.e. the warrant clause takes precedent over the reasonableness clause) (Johnson, 1948—86)
·         Katz v. US: “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.”
◊    however, this so-called per se rule is, according to Justice Scalia, “so riddled with exceptions that it is basically unrecognizable”
◊    thus, one might say that courts have expressed a preference for warrants, but are willing to consider the circumstances of each particular case
·         justification for the warrant requirement
◊    requires inferences to be drawn by a detached magistrate, rather than “the officer engaged in the often competitive enterprise of ferreting out crime” (Johnson, 1948—86)
◊    two negative consequences of indiscriminate searches (Amsterdam – 88)
§ exposes people and their possessions to government interference without good reason
§ creates potential for executive officials to act despotically and capriciously
◊    other justifications for primacy of the warrant requirement
§ antecedent warrant requirement prevents possibility of officers working backwards to justify actions ex post
§ advance written record also necessary to police specificity requirement
§ allows magistrate to reject warrant application if search is unreasonable under the circumstances
§ reduces public perception of unlawful police behavior
§ moreover, even though statistics suggest that the vast majority of warrant applications are granted, the mere necessity of filing an application may have a deterrent effect on unlawful searches and seizures (i.e. b/c police know they have to go to magistrate, they are more selective and careful about whether a search is truly reasonable)
 
D. Demonstrating Probable Cause
·         in order to issue a warrant, the magistrate must determine whether there is a fair probability that search will uncover evidence of wrongdoing
·         standard of review for magistrate’s decision to issue warrant:
◊    deferential review: did the magistrate have a substantial basis for concluding that a search would uncover evidence of wrongdoing (Gates)
◊    justifications
§ deferential review encourages police to obtain warrants (no warrant = no deference)
§ PC determinations are so fact-specific that de novo review would not really help guide lower courts and magistrates when deciding whether to issue a warrant
·         two tests
◊    totality of the circumstances (Illinois v. Gates, 1983—99)
§ veracity and basis of knowledge are closely intertwined issues that may usefully illuminate the commonsense, practical question whether there is probable cause to believe that contraband or evidence is located in a particular place
◊    Spinelli v. US (US 1969 – 91): two part test for demonstrating PC
§ (1) basis of knowledge: warrant application must set forth the underlying circumstances necessary to enable the magistrate to judge the validity of the informer’s conclusion (i.e. how did the informant come by the reported information—personal observation, heard it from a friend, etc.)
§ (2) veracity: there must be some reason to believe that the informant’s report is true
*        one way of establishing veracity is by averring that the informant previously provided the police with truthful information
*        paid informants (money or to avoid/lessen prosecution) and anonymous informants are presumptively unreliable
›          however, corroboration of innocent details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted justifies reliance on accuracy of information provided (Gates)
›          see 109-10 for more examples
*        identified citizen informants: presumed reliable because their motivations (said to be “concern for society or for his own safety”) suggest little chance of fabrication
*        confession of co-parti

, this creates the possibility that individual will be arrested for minor merely as pretext to conduct search
◊    use of force
§ Tennessee v. Garner (US 1985 – 172): use of deadly force to arrest a suspect is only justified where there is PC to believe that suspect poses a significant threat of death or serious physical injury to the officer or others
§ factor to be considered in determining reasonableness of force used (Graham v. Connor, US 1989 – 172):
*        severity of crime
*        whether suspect poses an immediate threat to safety of officer or others
*        whether suspect is actively resisting arrest or attempting to evade arrest by fleeing
§ reasonableness does not require least intrusive degree of force; other factors (here: least injury to police and others) can be taken into account (Forrester v. City of San Diego, 9th Cir 1994 – 173)
·         Arrests in the Home
◊    Payton v. New York (US 1980—182): absent exigent circumstances, an arrest warrant is required to enter an individual’s home in order to effect an arrest
§ officer must have reason to believe that suspect is in the dwelling
§ although search warrant would arguably be more protective (b/c it would require officer to establish before a neutral magistrate PC that suspect will be at home at a particular time), it is impractical
§ moreover, arrest warrant at least requires neutral magistrate to find PC to arrest (thus, officer is not permitted to enter the home solely of his own accord)
◊    the line btw. the home and public place
§ doorway arrests (184): circuits are split as to whether a doorway arrest is or is not “in the home” (thus, requiring an arrest warrant)
*        those who hold it is not are faced with the following search incident to arrest problem: if suspect is arrested before the officer steps through the door, officer may enter the home to carry out a permissible SITA; if, however, the officer first enters the home and then makes the arrest, the arrest is unconstitutional under Payton (and any evidence found in the home is the product of an unlawful search)
◊    arrests of third parties in the home
§ Steagald v. United States (US 1981—186): search of ∆’s house based on reasonable belief that third party suspect (for whom police had arrest warrant) was on the premises held unconstitutional
*        NOTE: this right only protects the homeowner, not the third party suspect arrested in another’s home (Underwood—9th Cir)
§ if, however, third party is a co-tenant or otherwise a resident, search is valid (on basis of arrest warrant for third party) (Litteral—9yh Cir; Lovelock—2d Cir)
*        father staying above garage while working on home (Pallais—7th Cir)
*        girlfriend, even though officer knew she had her own apartment (Risse—8th Cir)
◊    standing to assert that arrest in third party’s home was unlawful
§ overnight guest has REOP in host’s home; thus, arrest warrant is required to make an arrest in that home (Minnesota v. Olson, US 1990—187)
§ however, two individuals arrested in third party’s home while there for several hours to cut cocaine did not have REOP; thus, arrest in the home without an arrest warrant was lawful (Minnesota v. Carter, US 1998—188)
§ important factors in determining whether there is a REOP in host’s home