Criminal Procedure: Investigation
Professor Mary Fan
University of Washington School of Law
Fall 2011
I. Fourth Amendment
a. Constitutional Rights
i. Fourth Amendment
1. “Right of people to be secure in their persons, houses, papers…etc…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. …
ii. Fifth Amendment
1. “No person…shall be compelled in any criminal case to be a witness against himself.”
iii. Sixth Amendment: RTC
1. In all criminal proceedings, the accused shall enjoy the right…t have the Assistance of Counsel for his defense.
b. Fourth Amendment plays two key roles:
i. Law’s chief source of privacy protection.
ii. Regulation of Actors.
c. Damages
i. 42 U.S.C. § 1983- CRA of 1971- $ Damages
1. State Action
2. Monroe v. Pape (1961)
a. Officials acting in violation of state law are still acting under color of state law.
b. Therefore, you have jurisdiction to sue.
ii. Bivens Actions
1. Torts are primary alternative to exclusionary rule.
2. Qualified Immunity
a. Shields officials from liability for civil damages insofar as their conduct does not violate clearly established § or constitutional rights of which a RP would have known.
b. Courts may dismiss civil suits against LEO w/o ever deciding if there was a violation of a right on the ground that there was no violation of a clearly established right.
iii. 42 USC § 14141- Structural Reform Litigation
1. Allows DOJ to pursue structural reform lit.
2. Unlawful to engage in pattern or practice that deprives a person(s) of rights or privileges.
iv. Criminal Prosecutions of Police
1. State laws may insulate police.
2. E.g: RCW § 9A.16.040
a. LEO shall not be held criminally liable for using deadly force w/o malice.
v. Exclusionary Remedy
1. Primary remedy for 4A violations.
2. Overwhelmingly involves challenges to S&S- most ∆’s seek to exclude evidence.
3. Rationale:
a. Deterrence
b. Procedural Uniformity
c. Integrity of Justice System
d. Healthy Federalism
4. Note: Only remedy for those who are illegally searched and something is found.
5. **Note: Not a Constitutionally mandated remedy- judicially created.
6. Not until Weeks v. U.S. (Pg 342) (1914) that the Court stated that the use of unlawfully seized evidence represents a violation of the 4th Amendment. Created the exclusionary remedy and extended it to the FG.
a. Rationale: if you don’t have a remedy, do you really have a right?
7. Then, in Wolf v. CO (Pg 342) (1949), the Court extended the 4th Amendment to the states via the 14A.
a. However, didn’t extend the Weeks exclusionary rule to the states yet as an essential ingredient of the right.
vi. Mapp v. Ohio (Pg 340)
1. Incorporates exclusionary rule to states.
2. LEO tried to get into house, D refused b/c they didn’t have warrant. Three hours later they came back and forced their way in. Confiscated paraphanelia. No warrant was ever produced nor was failure to produce one ever explained.
3. Court extends exclusionary rule to states. Finds that PURPOSE of exclusionary remedy is to DETER.
4. Differences b/t state and federal rules were an invitation to evasion by police at both levels- silver platter idea.
II. 4A Protections Governing Police Search and Seizure
a. General Info
i. At threshold must be:
1. A search or seizure,
2. By a gov’t actor or agent.
b. REP: Defining a “Search” (that triggers protection)
i. The REP Test (361-368, 370-378)
1. State of the law at time of Katz
a. Olmstead v. U.S. – Police surveillance b/t Olmestead and another individual around Olmstead’s home via wires outside home. Court holds no physical trespass, so no 4AV.
2. Katz v. U.S. (Pg 361)
a. FBI places listening device outside of phone booth and tapes Katz’s calls. Court asks, was there a REP upon which petitioner justifiably relied?
b. New Triggering Conditions:
i. Subjectively manifest an expectation of privacy. (EP)
ii. EP must be objectively justifiable. (Reasonable)
c. Court finds that him closing phone booth door manifested that he had EP, which society is willing to accept as reasonable. Doesn’t matter that phone booth is “public” in sense- person that matters, not place.
i. Also, there is a seizure because the conversation is “seized.”
d. Harlan, Concurrence
i. Now dominant way to look at rsblns of S&S
ii. Does ∆ have REP? (Subjective)
iii. Is EP rsbl from society’s POV, and is society prepared to recognize it as rsbl? (Objective)
e. Black, Dissent:
i. Court is now usurping police’s power and is sitting in judgment on police acts in the field.
3. How to determine if person is a gov’t agent?
a. Acting at request of state actor.
i. If unclear, examine totality of circum.
ii. Did private person believe @ time of S or S that action was implicitly req. or requested by gov’t?
iii. Did gov’t actors have reason to know that their actions might give rise to such belief or that such belief existed?
4. Where You Don’t Have REP
a. Knowingly expose: impact on REP
i. What person knowingly exposes to the public, even in his home/office, is not a subject of REP
ii. I.e.: person puts trash bags on street and LEO search them- ∆ knowingly exposed items, so loses 4A protection.
ii. Where You Don’t Have REP
1. Open Fields Doctrine
a. Oliver v. U.S. (Pg 370)
i. Police search Oliver’s farm where ∆ is
an tell whether you’re preganant, etc.
iii. IS entitled to 4A Protection.
iii. Third Party Exposure Rationale (379-396)
1. Emanates from language of Katz.
a. What person knowingly exposes to public, even in his own home or office, is not subject to 4AP.
2. Trash Searches
a. CA v. Greenwood (Pg 385)
i. ∆ put opaque trash bags on street and police search them.
ii. Held: ∆ knowingly exposed trash, so loses 4AP. ∆ lacks an obj. expectation of privacy. It’s not that the trash was abandoned, but that the trash was exposed to 3P.
iii. Don’t have REP in trash b/c you leave it out for everyone to see.
iv. Brennan, dissent
1. Glad that Ct didn’t go with abandonment argument. Not abandonment b/c it requires intent to abandon.
3. Bank and Phone Records
a. Bank- no 4AP in financial records related to his account b/c he takes the risk, in revealing those records to another person, that that info will be conveyed to Gov’t.
b. Phone- no 4AP b/c individuals voluntarily convey info to phone company and expose that info in ordinary course of business.
4. Undercover Agents and Recordings
a. U.S. v. White (Pg 379)
i. ∆ having conversation with his friend, an informant. Friend is wearing wire. ∆ objects to recording of the conversation as a “search” (friend is acting as state actor).
ii. U.S. v. Hoffa
1. ∆ in hotel, talking to colleague (police agent). Colleague testifies @ trial. Not a 4A search b/c no REP in FALSE FRIEND. No protection from misplaced confidence.
iii. Held: Law permits frustration of ACTUAL expectations of privacy by permitting LEO to use informant testimony- no difference when it’s being recorded.
1. Person assumes the risk that partner might be reporting to police or wearing a wire.
2. Policy Reason: Wire recording more accurate than informant testimony @ trial.
3. Differs from Katz b/c one person is consenting to other party in conversation. Katz did not consent.
iv. Douglas, Dissent
1. Eavesdropping likened to nuclear weapons. Electronic surveillance is greatest leveler of privacy ever known. Fettering free discourse- relates back to 1A.
v. Harlan, dissent
1. Same free discourse concerns, but also conversations cease to be as ephemeral as memory.
