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Criminal Procedure
Villanova University School of Law
Poulin, Anne Bowen


I. Determine whether there is a Fourth Amendment violation:

(A) If the government conduct looks like a search:
o 1. Was it a search?
§ Katz test
· Actual expectation of privacy
· Recognized as reasonable by society
o Factors that diminish expectation of privacy
§ Accessible to anyone/anything that wants to rummage through it
§ Placed in the care of a 3rd party
· Smith: govt can get telephone company to record every number you dial
§ No interference with the defendant’s normal use of property
§ Observing from an area that is open to the public
§ Reveals no information that could not have been obtained through visual surveillance
o Factors that increase expectation of privacy
§ Private home
· Warrantless searches and seizures inside a home are presumptively unreasonable absent exigent circumstances
§ Technology not in public use
o 2. Does this defendant share in the expectation of privacy (standing)?
§ Specific defendant has to show that that defendant has a specific expectation of privacy
§ If you are too far removed from the legal claim/wrong, the court is not going to listen to you…in order to get legal remedy, you have to show harm to your legal right (standing)
· Relationship to owner
· Duration of stay (overnight: standing)
· Nature of the transaction (commercial: no standing_
o 3. Was the search reasonable (remember to consider both justification and scope)?
§ If there was a search warrant: was the warrant valid?
· i. Does it describe the place to be searched specifically? The thing to be seized? Issued by a detached and neutral magistrate?
· ii. Is it supported by sworn statement of probable cause?
· Probable Cause to believe that the evidence sought is likely to be found in the location to be searched
o Probable cause deals with probabilities
o Look to affidavit (sworn statement) to see whether there was probable cause because that is what the magistrate had to go on
· (1) Quantity
§ Enough facts
· (2) Quality
o Gates test: viewing all evidence in the totality of the circumstances (considering Aguilar-Spinelli factors) does it lead to a common sense conclusion that the item sought would probably be found in the place to be searched?
§ Aguilar-Spinelli factors
· (1) Basis of Knowledge: the claim must set forth any of the “underlying circumstances” necessary to enable the magistrate independently to judge the validity of the informant’s conclusion
o insider knowledge or relationship that would make you believe that they have good information
· (2) Veracity: the claim must be supported as “credible” and “reliable”
o Anonymous Tip
§ Problem: there is no accountability and easy for the police to make up
§ Ordinary citizens or police officers are given more weight because they attach their name to their report and the police can go back and charge them if they have said anything wrong
o At the level of judicial review on an issued warrant, ask whether the magistrate had a substa

they are not home
o Scope
§ What would a reasonable person understand in the exchange between the police and the person consenting
· Car
o Trunk okay
o Inappropriate to slash upholstery
o Other
§ Consent can be withdrawn but this in and of itself does not give police reason to search…but how they did it could (nervous,…)
· 3. Search incident to arrest (remember special rule for car)
o To take advantage of this exception there must be an arrest (not acceptable to conduct search even if you are allowed to arrest but choose not to do so)
o Anywhere but a car
§ Justification
· Arrest: need probable cause to that the D has committed or is committing a crime
· Can be arrested for minor criminal offense in the officer’s presence
· Officer’s motivation is irrelevant
o So long as it is not prejudicial
§ Scope
· 1. search of person
o person, clothing, containers in the clothing or on the person
· 2. search of area within control of the arrestee
§ Time
· Should be substantially contemporaneous, but search can occur before the arrest (Supreme Court not clear)
o Car
§ Justification
· Lawful arrest of an occupant or a recent occupant
§ Scope (bright line rule)