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Criminal Procedure II
University of Toledo School of Law
Hamilton, Melissa

 
4TH AMENDMENT
 
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath and affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
 
 
STAGE 1 – IS THERE A 4TH AMENDMENT RIGHT?
 
1.      Persons and actions covered
a.       “people” à citizens & those who have developed a sufficient relationship with the US
b.      standing à may only be asserted to those subject to an unreasonable search or seizure
c.       government action à only applied to actions by the government or private persons acting as an agent of the government
 
2.      Persons
a.       their body
b.      exterior of body (pat downs)
c.       interior (urine test for drugs or alcohol)
d.      oral communication (electronic surveillance)
 
3.      Houses
a.       residence including temporary residence (hotel) and place of businesses
b.      attached (garages)
c.       not attached (sheds)
d.      curtilage (land surrounding)
(1)   open fields à NO
 
4.      Papers & Effects
a.       Papers – personal items (letters and diaries) & impersonal business records
b.      Effects – clothing, furnishings, automobiles, luggage, etc
 
             I.      WAS THERE GOVERNMENTAL CONDUCT? à No = No 4th Am. Right
 
a.       GOVERNEMENTAL ACTION REQUIRED
                                                  i.      By government
                                                ii.      Or by persons acting in the capacity of an agent of the government
1.      Determined by degree of government involvement in the situation and totality of circumstances
                                              iii.      4th Amendment is not limited to Police conduct, also over the conduct of:
1.      public EE
2.      Firefighters
3.      housing inspectors
                                              iv.      Note:
1.      Administrative searches by non-government actor are controlled by different standards.
 
          II.      DOES THE DEFENDANT HAVE STANDING? – No = No 4th Am. Right
*** Will preclude suppression of evidence ***
 
a.       Rakas: Legitimate Expectation of Privacy Standard:SEACHED ITEMS
                                                  i.      A defendant must demonstrate that he personally has an legitimate expectation of privacy in the place searched, and that his expectation is reasonable.
1.      YOUR personal constitutional rights must have been violated
2.      4th Am. Rights are NOT derivative.
 
b.      Homes and Residences:
 
                                                  i.      Individual
1.      Always have expectation of Privacy – therefore standing
2.      Exception:
a.       Guest consenting to search in areas they personally are permitted to go – Plain View Doctrine
3.      Note:
a.       Tenant renting à does he have REP
                                                                                                                                i.      In Apartment – yes
                                                                                                                              ii.      Renting space in garage à depends on whether he had REP
b.      Right to Privacy in your hotel room until you leave.
 
                                                ii.      Guest: When Resident is Home
1.      Over-Night Guests: Minnesota v. Olson: Defendant had standing (REP) even though he was never home alone, never had a key and lacked dominion and control.
a.       STANDING
2.      Social Guest: Minnesota v. Carter: had never been at the apartment before and had apparently come for the sole purpose of bagging cocaineà no REP
a.       NO STANDING
3.      Guest Right To Privacy? Consider:
a.       Commercial purpose of visit?
                                                                                                                                i.      Non commercial – more likely to have REP
b.      Duration?
                                                                                                                                i.      Overnight – REP
                                                                                                                              ii.      Short period of time no indication that guest was to stay overnight – Need more evidence for REP
c.       Pervious contacts – Family, frequent visitor, etc? more likely to have REP.
 
                                              iii.      Guest: Tenant is Absent:
1.      A non-resident may have standing to contest a search if she was the sole occupant of the premises with the permission of the resident, and has some significant connections to the premises.
2.      Over Night Guest still OK with permission and dominion and control
 
c.       Traffic Stops:
                                                  i.      Individual Owning/Renting the Car – Standing to challenge a search of any area he had REP
                                                ii.      Car with Passangers: Guest has Standing to challenge the forcible stop of a car, because that act constitutes a seizure.
1.      No standing for Subsequent searches unless they prove they had REP
                                              iii.      Car Lent and Outside Owner’s possession:
1.      Short period of Time?
a.       Jurisdictional split
b.      Usually maintains a REP
2.      Complete control / Extended Period of time?
a.       Usually not standing (REP)
b.      Vice-Versa à lendee usually has REP
 
d.      Search of Third Person:
                                                  i.      Cannot challenge a search of an item that you do NOT have a REP over, but that item contains something you have a possessory interest in
 
e.       INTEREST IN SEIZED ITEMS
                                                  i.      Apparent that a person may challenge a seizure of her own person, but lacks standing to challenge the seizure of someone else.
1.      Ex. D drops drugs in X’s purse. X has standing to challenge search and D does not
2.      D doeshave standing to challenge seizure.
 
                                                ii.      Car with Passengers Traffic Stop = seizure of passengers
 
f.       Notes:
                                                  i.      Not Relevant that police purposefully target someone by conduction an unlawful search/seizure to prosecute someone else
1.      May challenge your privacy rights being violated
                                                ii.      Exclusionary Rule CANNOT be asserted by witnesses
1.      Ex. Police Eavesdrop on B & C à get evidence against C; C has not standing à may not evoke the exclusionary Rule
                                              iii.      Interest in AREA V ITEM
1.      Interest in Item, but not area possible
a.       Stolen Vehicle – not over area, but over items
b.      Office Space – no REP in common area, but REP (maybe, depending on ToC) in file cabinet
 
 
       III.      WAS THERE A REASONABLE EXPECTANCY OF PRIVACY IN THE PLACE / THING SEARCHED?
 
a.       WAS IT A SEACH AND/OR SEIZURE WITH THE MEANING OF THE 4TH AMENDMENT OF THE CONSTITUTION?  No = no 4th Am. Right
 
                                                  i.      Katz: HARLAN CONCURRANCE à 2-Part TEST: to whether search/seizure
1.      Does Defendant exhibit an actual (Subjective) expectation of privacy?
2.      Is that expectation one that society (Objectively) prepared to recognize as reasonable?
                                                                                    

icsense tag number
c.       Paint chip from you car – not unreasonable intrusion
d.      Face
e.       Fingerprints
f.       Handwriting/ Voice
 
                                              iv.      Special ISSUES:
1.      Sense Enhancements: Police have limited ability to enhance senses
a.       Dog Sniffs àScent – No REP
b.      Binoculars à Sight à No REP; public eye
c.       Thermal Imagers: technologythat enable government to gather evidence from protected area which it could not have done without having a warrant — REP
1.      Court drew a fine line because they were dealing with the home à “public eye” would most likely be acceptable
2.      For technology to be reasonable, it must be readily available to the public.
 
 
                                                v.      SEIZURE OR PROPERTY
1.      DEF: Some meaningful interference with an individual’s possessory interest in that property
2.      Notes:
a.       GPS on car à not seizure, did not interfere with possessory interest
b.      Beeper in Can à same story, no seizure
3.      4 MAJOR Categories that Police MAY SEIZE:
a.       Contraband à that is illegal to possess in the first place
b.      Fruits of a Crime à items that are obtained from the commission of a crime
c.       Instrumentalities of a Crime à crow bar, anything used in furtherance of the crime, weapon.
d.      Mere Evidence à blood stains of person murdered/ murderer, fingerprints, DNA.
1.      UNLESS some other right has been violated
e.       Note:
                                                                                                                                i.      Abandoned property à though under different analysis.
 
                                              vi.      SEIZURE OF THE PERSON
1.      *** TERRY GOES HERE ****
2.      ARREST
a.       Arrest is always a seizure
b.      But a seizure is not always an arrest
 
 *** If (1) Government Conduct Effects a Defendant (2) with Standing and a (3 )REP a Fourth Amendment Right Exists ***
 
NOW:
 
STAGE II – IS THE SEARCH OR SEIZURE REASONABLE?
 
       IV.      WAS THERE A VALID SEARCH/ARREST WARRANT?
 
a.       PROBABLE CAUSE: general
 
                                                  i.      Modifies the WARRANT CLAUSE
1.      “The right of the people to be secure in their person, houses, papers, and effects, against unreasonable searches and seizures shall not be violated, and no Warrant shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.”
 
                                                ii.      *** Must have Probable Cause (PC) For: ***
1.      “Arrest and search Warrants must be supported by PC
2.      ALL Arrests without a warrant
 
                                              iii.      Probable Cause Exists When:
a.       Arrests Must have PC that:
                                                                                                                                i.      A crime was committed AND