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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
Boyt v. US

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] – Justifiable Reliance on privacy “protect people not places”
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.
The Court looks at the effect that it would have on society if they ruled a different way

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 REOP 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).

Descriptive/normative – what does or will society expect? / What should society expect?

o Dissent (Black): Texturalist. Search is “a search” eavesdropping not mentioned in text of the amendment by the founders. So he figures that they meant only physical searches. “inspection of tangible things”

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) Subjective Expectation of Privacy:
· Hope v. Expectation: Desire and intent to keep privacy – not the same thing as an expectation, court says he had a subjective expectation of privacy because he erected the fence around the curtaledge (yard)
2) Legitimate Expectation of Privacy:
· Theoretical accessibility to public
· Legal right to observe
· Phy

test only disclosed the fact that it was cocaine

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

Two Types of Warrants

Search: Authorize search for a seizeable item; generally authorizes seizure as well.

Arrest: Authorize seizure of person; (and maybe implicitly some searching for that person?)

Quantum of likelihood (reasonable belief) that…

Quantum of likelihood (reasonable belief) that…

1) Something properly subject to seizure by the government – i.e., contraband or fruits, instrumentalities, or evidence of a crime

2) Is presently

3) In the specific place to be searched

1) That particular individual

2) Has committed or is committing a particular offense

Draper v. United States [p. 50] Facts: Fed agents told that man returning on train would have cocaine on him

Spinelli v. United States [p. 60] Facts: Police have an informant that is reliable and tells them that Spinelli is operating a bookmaking operation, and using these phone numbers. Spinelli is convicted of conducting gambling activities.

Rules: Court rejects the Totality of Circumstances Approach.

“Aguilar-Spinelli Two-Prong Test”: Probable cause based on informants tip where support for:

1) Credibility/Veracity of informant (ex: maybe look at informant’s track record)

2) Basis of knowledge of informant – how they got the information – solid basis for allegations

Draper v. United States: Benchmark of adequacy. Informant did not state the way in which he had obtained his information, but describe with minute particularity, suspects appearance and future actions. A magistrate when confronted with such detail, could reasonably infer that the informant had gained his information in a reliable way.
If tip insufficient, look to other parts of affidavit to bolster

Holding: Court said informant affidavit was insufficient. Informant’s tip, even when corroborated to the extent indicated – was not sufficient to provide the basis for a finding of probable cause.

Illinois v. Gates [p. 59] Facts: Police receive an anonymous tip in the form of a letter.

Rule: Court adopts the totality of circumstances test, and that the Aguilar-Spinelli prongs are factors to consider, and not necessary to have both.
Holding: Court finds probable cause. Because the informant told truth about one part in the tip, there is a reason to believe that they told the truth about the other parts.

Veracity and basis relevant, but weakness in one prong is made up by strength in other.
“Substantial Basis” or “fair probability” less than preponderance of evidence, ultimate standards

Here, a basis for knowledge was not necessary, because the information was so detailed they can infer that its first-hand information.

Accurate prediction of innocent future activity supports both prongs.

Dissent: Ambiguous behavior is not enough