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Criminal Procedure
Wayne State University Law School
Dillof, Anthony M.

Criminal Procedure I Outline

Chapter 1 – The “Threshold” of the Fourth Amendment Right to be Secure against Searches

o Deals with 4th, 5th, 6th, and 14th Amendments of the Constitution

Benefits & Burdens of Society

Benefits: Protect from Outside Threats

Taxes (just money)
Conscription/going off to fight (rare)

Benefits: Protect from Internal Threats

Taxes (just money)
Jury Duty (mild)
Intrusions incident to law enforcement (ex: someone gets hit by a police car or efforts by police to gather information

4th, 5th, and 6th Amendments have been construed to only directly apply to federal actors and not actions of state governments.
14th Amendment Due Process Clause: Provision specifically designed to control state action, today states are generally not free to do that which the Bill of Rights proscribes (forbids) – when its incorporated its done jot for jot.
Selective Incorporation: Approach (by courts) to decide whether the substance of a particular Bill of Rights entitlement applies to the states, over time led to the effective incorporation of most of the Bill of Rights.

Fourth 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 or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Shall not be violated by whom and what? By the Government or the State (state actor).

Most constitutional amendments constrain state actors – doesn’t apply to private citizens.
Ex: If neighbor reads your diary it is not a violation of the 4th amendment, because it was done by a private citizen, but if the police do then it could be.

Who are state actors? Government official, government employee etc.

Ex: If FBI hires a scoundrel to break into your house to steal diary – still a violation of the 4th amendment, that person could constructively be a government agent
Borderline cases: Where you are not paid or employed but the police suggest, encourage, enable or order you to do something (such that if they did it themselves it would be a violation of the 4th amendment)

Scope of 4th Amendment:

Only regulates conduct of state actors

State actors are government officials, employees, & others

Applies to states because incorporated into 14th due process clause – which directly applies

“Others” determined based on range of factors: length of relationship, government purpose, compensation, expectation of conduct, etc.

What is a Search? 4th Amendment guarantees that a person should be secure “against unreasonable searches.”

If it is not a search, the government can perform it without violating the 4th Amendment.
Not everything is a search – police inquiry is not a search, not every instance of police acquiring information is a search

Early Electronic Eavesdropping Cases:

Oldstead (1928): Wiretap, no “actual physical invasion, no search

Goldman (1961): Detectaphone against wall of building to hear conversation inside, no search

Silverman (1961): Spike mike (microphone with a spike in the wall) was put into a party wall, search

Clinton (1964): Thumbtack penetration microphone, search

*Physical penetration determining whether something is a search or not.

Katz v. United States [p. 5] Facts: Foundational modern case of what a search is – Petitioner’s end of the phone conversation was overheard by FBI agents who had attached an electronic listening device to the outside of the public telephone booth; he was convicted of transmitting wagering information by telephone.

Holding: Old standard of physical penetration (“into constitutionally protected area”) as a criteria for a search seemed arbitrary/superficial, so court adopts a new standard that looks at whether the government has violated privacy on which a person has justifiably relied.

Factors the court identifies to supports its conclusion that there was justifiable reliance:

Expectation of Privacy:

Payment of Toll:

Public Policy (weighted factor):

A person in a phone booth would expect not to be heard by others

Gives person some property right, even it it’s a small amount, its enough to establish a property interest

Vital role of public telephone in private communication

Impact on society of challenged government activity

Concurrence (Harlan): Sets out two-part Katz test – requirements for search

Katz Two-Part Test – Requirements for Search (Harlan, concurrence): Violation of…

1) Actual (subjective) expectation of privacy, and

2) Reasonable (legitimate) expectation of privacy

Example 1: If you called 911 or didn’t close telephone booth door – then society might think that you can’t expect privacy, you have (1) but not (2).
Example 2: Or if you are talking on the phone with the door closed, but think that someone else can hear you, if you think government is wiretapping you have (2) but not (1).

Early False Friend Cases:

On Lee (1952): Wired informant, no search

Lopez (1963): Taping by IRS agent in office, no search

Hoffa (1966): Informant listens to and reports conversations in defendant’s hotel room, no search

United States v. White [p.10]:
Facts: White convicted of illegal transactions in narcotics. Government agents overheard conversation between White and government informant by monitoring frequency of radio transmitter concealed on the informant.

Holding: No legitimate expectation of another’s confidentiality – assumption of risk (one assumes the risk that confidentiality violated when they talk to another person.)

Nominal focus on expectations/risk (apply subjective/objective test)

Dissent (Harlan): Criticism of risk analysis, pushes aside precedent and reliance on what risks we assume. Interested in impact of government activity.

Balancing Test: Security vs. the needs of law enforcement technique. Impact is that it could smother spontaneity if government hears and transmits conversations
Burden of Proof: Majority places burden of proof on defendant, no evidence that defendant would have acted any differently. Harlan (Dissent)thinks it’s obvious that the burden of proof rests on the government – whether constitutional rule is going to affect what people do.

Smith v. Maryland [p. 17]:
Facts: McDonough is robbed – she began receiving threatening and obscene calls from a man identifying himself as the robber. The phone company, at police request, install a pen register to record numbers dialed from the telephone at Smith’s home. Smith was indicted for robbery.

Holding: No search to use pen register to discover phone numbers that defendant dialed. Court adopts Harlan formulation of Katz test – No subjective expectation of privacy; no reasonable expectation of privacy because phone companies use pen register.

Ambiguity regarding subjective test – inquiry seems to be what people in general think.
Phone is a vital part of life – no way to use it without conveying info to phone company

Dissent (Stewart): Should instead look to whether government is getting at something you want to protect; and Phone numbers are important to protect
Dissent (Marshall): Thinks of the 4th amendment as protecting civil liberties as protecting integrity of political process. Concerned about government abuse to stifle opposition, to pursue disfavored groups; harass organizations.

California v. Ciraolo [p.24]:
Facts: Cops got a tip and flew over guys house to observe that he was growing marijuana
o Holding: Flying over house to observe illegal activity (even though its within the curtaledge/yard) doesn’t require a warrant, because it’s not a search.
o Court applies the Katz 2-part approach:
1) Su

en register).

Murky line between observation and inference

Not allowed to learn something that could only be learned through physical intrusion.

Dissent (Stevens): Not exploring details of the home – making inferences based on external observations of the home.

United States v. Jacobson [p. 47] Facts: Defendants claim two different actions by the government amounted to searches: 1) Government agent’s reopening of a package that had previously been opened by Federal Express employees who qualified as “private parties”; 2) A chemical “field test” that identified a substance found inside the package as cocaine.

Holding: Neither action qualified for 4th Amendment coverage.

1) The removal and visual inspection of the contents “enabled the agent to learn nothing that had not previously been learned during the private search.”
2) The field test was outside 4th Amendment control because it “could disclose only one fact previously unknown to the agent – whether or not a suspicious white powder was cocaine.”
§ That disclosure could “not compromise any legitimate interest in privacy” because:
1. The fact that a “substance is something other than cocaine” is “nothing of special interest,” and
2. The fact that “a substance is cocaine,” possession of which is “illegal,” is not something in which one can have a “legitimate privacy interest.”

Illinois v. Kabalas (on Discussion board)

Holding: Use of trained dog who during traffic stop to sniff a car, and alerted to narcotics, such use of a dog was not a search, nor did it render the traffic stop itself unconstitutional

Re-affirmed Jacobson, No legitimate expectation would be violated by such activity

Illinois v. Andreas [p. 48] Facts: Government reopened a large container it had previously searched legitimately at the border.

Holding: Court held that reopening was deemed not to be a “search” because there was no “substantial likelihood that the contents (of the container had) changed.”

The transfer did not infringe upon a constitutionally protected privacy interest because “it conveyed no information at all.” Don’t learn anything that the owner of the package had a legitimate interest in keeping private.

Problem 1-4 [p.50] Facts: Smith conducted illicit narcotics dealings by means of his cordless telephone. His neighbor, using a radio scanner (small public accessibility), listened in on phone conversations and reported them to police; the police asked him to tape future conversations.

The neighbor became a constructive agent of the state, working for them when they asked him to record further conversations
Scanner is not in general public use – its rare, expensive and only small member of public owns them

Problem 1-5 [p. 50] Facts: Police place a beeper in a bank envelope to track a guy.

Similar to Knotts – use of tracking device, but in Knotts they tracked a container visual to public, here the envelop was not easily visible by the public. A person could have seen the envelop, but its not like being in the public.
Its not his property, similar to Jacobson there is no legitimate expectation of privacy in illegal movement

Chapter 2 – Unreasonableness and the Probable Cause Requirement

­Probable Cause: Cause to think (reason to think) something will be there, or be able to seize something

Explicit requirement of the 4th Amendment: “no warrant shall issue, but upon probable cause.” Probable cause is an essential precondition for a valid warrant to search or seize.
Probable cause must be “supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Judge, clerk or magistrate determines whether there is probable cause. Police generally approach the district attorney with an affidavit to obtain a warrant