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

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.
In General
·         4th Amendment was enacted in response to the Colonist’s fears of “general warrants” which required officials to specify that a crime had been committed, but then allowed the officials to decide which places should be searched.
·         4th Amendment applies only if two predicate requirements are satisfied:
o        Must be state action (committed by government official)
o        Must be either a “search” or “seizure” w/in meaning of 4th amendment
·         If the two predicate requirements are met, then the government’s actions are evaluated procedurally
·         A warrant is not always required – search or seizure must be reasonable
·         If gov’t official violates the 4th amendment, any evidence obtained in the search may be excluded in a criminal prosecution
areas Protected
4th Amend. applies to areas in which suspect has a reasonable expectation of privacy
·         must show an actual, subjective expectation of privacy in the area, and
·         expectation must be one which society recognizes as reasonable
·         Pre-Katz: courts limited 4th Amend. to private property owned by the subject of the search. 
·         Curtilage concept: 4th amendment protected not only private houses, but also the area surrounding a dwelling (curtilage) – “all buildings in close proximity to a dwelling, which are continually used for carrying on domestic employment, or such place as is necessary and convenient to a dwelling, and is habitually used for family purposes.” U.S. v. Potts 1961
·         Katz rejected the notion that ONLY private property could be protected by 4th amendment:
·         “the 4th Amend. protects people, not places”
·         Facts of Katz: FBI agents place electronic eavesdropping equipment on the outside of a public telephone booth from which Katz, a bookie, conducted business. Under traditional concept, no 4th amendment search occurred when Katz made his phone call on public property. But under new test, court held Katz did have a legitimate expectation of privacy in his telephone conversation (despite the fact it was made from a public phone booth) when he closed the door behind him, thus he sought to exclude people from hearing his conversation. Although he could be seen by the public, he did not seek to exclude people from seeing him – only hearing him. “To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication.” Stewart, J.
·         Physical Intrusion
o        Not required, but important factor
o        Physically invasive inspection is more intrusive than mere visual inspection (as in Ciraolo)
o        Bond v. U.S. 2000 p. 28
·         Effect of Katz on curtilage concept:
o        in most instances, the areas that were protected under curtilage notion (e.g., the dwelling) will be areas in which the individual has a justifiable expectation of privacy.” However, there may be instances where a building falls w/in curtilage, but there is no legitimate expectation of privacy in it (e.g., a barn)
o        U.S. v. Dunn 1987 – articulated standards for determining whether building falls w/in curtilage of main dwelling:
§         proximity of the home to area claimed to be curtilage
§         whether area is included w/in an enclosure that surrounds the home
§         nature of the uses to which the area is put
§         steps taken by resident to protect the area from observation by people passing it
·         NO SEARCH (thus 4th amendment does not apply):
o        Wiring informant – No legitimate expectation of privacy that a person you are conversing with will not reveal conversation to police (U.S. v. White 1971 p. 9)
o        Transfer to third person –
§         Pen Register: No legitimate expectation of privacy in the numbers you dial, even if in your own home, when you assume the risk o

han not that the specific items to be searched for are 1. connected with criminal activities and that these items will be 2. found in the place to be searched
Probable cause to arrest: must be more likely than not that a 1. violation of the law has been committed and that the person to be arrested 2. committed the violation
·         Required degree of probability
o        Generally “more likely than not”
o        However, can be less in some circumstances:
§         If it can be reasonably inferred that any or all of the occupants had knowledge of and exercised dominion and control over the contraband, then there is probable cause to believe that one of the occupants committed the crime, either solely or jointly
·         Types of information establishing probable cause:
o        Evidence from officer’s own observation
§         Factors which contribute to probable cause:
·         flight of suspect when approached by officer
·         physical clues
·         voluntary admissions by suspect
·         suspicious or surreptitious conduct
·         suspect’s previous criminal record
·         suspect’s presence in high-crime area
o        Information from informants
§         Totality of the circumstances (Illinois v. Gates 1983 p. 59) – overruled Aguilar-Spinelli test
§         Look to 1. reliability of informant; 2. basis of knowledge; 3. corroboration
·         Strong factor makes of for weak factor (more reliable, less basis of knowledge required, and vice versa)
·         Corroboration may add to probable cause, especially if corroboration is of future actions of third parties that are ordinarily not easily predicted
·         Corroboration of innocent activity may still increase probable cause