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Criminal Procedure
Villanova University School of Law
Poulin, Anne Bowen

CRIMINAL PROCEDURAL OUTLINE
FALL 2008
 
4th Amendment
–          Aims at agencies of the government
–          Constitution defines the powers and limitations of the government
 
DETERMINE WHETHER THERE IS A 4TH AMENDMENT VIOLATION
 
If the Government conduct looks like a search:
1.     Was it a search?
a.       Actual Expectation of Privacy
b.      Recognized as Reasonable by Society—subjective
§      A search can occur without physical intrusion into a constitutionally protected area by requiring instead an infringement upon a justified expectation of privacy. 4th Amendment “protects people, not places”
·      KATZ TEST: whether an individual has an expectation of privacy that society is prepared to recognize as reasonable
·      If government can obtain a warrant, they should
§   Was evidence exposed to public and conveyed to a third party? It is not enough to believe acting privately, it must be reasonable too.
§      Was there interference in defendant’s normal use of property? Could a member of the public observed what the police observed?
·         Burden of Proof—government has to prove expectation of privacy is reasonable. Defendant has to prove it is unreasonable. 
§      Intrusion on reasonable expectation of privacy when get information not normally able to be obtained without a search
·         Not a search if beeper not activated and monitored. Once monitored when the container is not in plain view is an intrusion and a search
o       Unlawful, because obtained information about the interior of the home with technology that otherwise would not have been obtained without physical intrusion in home.
·         Home is the fundamental factor—core protection of 4th amendment, should have most privacy
 
 
2.     Does this Defendant Share in the Expectation of Privacy (standing)?
a.       Only actual victims of alleged violation can challenge the violation
b.      If too far removed from legal claim or legal law, wont get remedy for violation of your zone of government protection
c.       If not your home, you have to show you still have a reasonable expectation of privacy
d.      Invited guest that spends the night—expectation of privacy in 3rd party home
e.       If conduct regular business in place—expectation of privacy
f.       Assessment of reasonable expectation of privacy should not factor in that defendants were doing something illegal
g.      Evaluate standing before look at facts
h.      STANDARD: Is Katz test met as to particular person
 
 
3.     Was the Search Reasonable (remember to consider both justification and scope)?
a.       If there was a search warrant:
1)      Was it valid?
–          Did magistrate review? Substantial basis of knowledge?
a.       Court wants to encourage officers to get warrants so only overturn warrants when magistrate was not deferential and did not have substantial basis of knowledge based on his power and common sense.
b.      Probable cause
 
2)      Does it describe the place to be searched specifically? The thing to be seized? Issued by a detached and neutral magistrate?
–          General Scope of Searches: anywhere there is probable cause to believe items searching for could be.
–          A Search Warrant adds:
a.       Judicial Approval—gives a procedure of antecedent justification from a neutral judicial officer
b.      Gives bounds for what you can search and what you can search for—limits extent of intrusion
c.       Probable cause written down before search commits officers to specific statements. 
 
3)      Is it supported by a sworn statement of probable cause?
–          Probable cause—need to have reasonable belief founded on circumstances and inferences—assessment of probabilities
–          Probable cause to search: probable cause to believe items sought will be found in place to be searched.
–          Consider Quality and Quantity
a.       EX: Officer’s observations are very good quality
b.      Quality is a concern with informants because:
                                                                                i.      Info good enough to validate warrant
                                                                              ii.      Credibility, sincerity
                                                                            iii.      Misinterpretation, misperception, mistake inferences
–          Gates test: viewing all evidence in the totality of 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? At the level of judicial review of an issued warrant, ask whether the magistrate has a sub

                                                                                                       i.      Threat of physical violence
                                                                                                                                                               ii.      Destruction of evidence
                                                                                                                                                             iii.      futile
2.      Felony
3.      Daytime
4.      Stringent Probable Cause
·         Justification: Government needs probable cause and arrest warrant to enter home when suspect is home. If no warrant, need probable cause and exigency
·         Exigency can justify no warrant
o       If exigency, need probable cause to believe home and committed crime
o       Exigency only excuses going to magistrate to get warrant, same justification needed.
o       Arrest warrant: need probable cause to believe person committed crime, not probable cause to believe certain place at certain time if place not home.
·         If in a third party’s home: need arrest warrant, search warrant for third party’s home and probable cause to believe he is there
·         Scope: Any reasonable place person might be hiding
 
 
2)      Consent:
–          Justification: no specific justification needed
–          Scope: what would reasonable person understand from exchange between person consenting and officer
a.       NOT what reasonable person would do
–          Consent can be withdrawn
–          A search is not justified with consent if detention of suspect is illegal
–          Who has consent:
a.       Individual and common authority
b.      Focus on social expectations and common understanding, not property interest
c.       Joint access and control
–          Must be voluntary