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

Criminal Procedure – Investigation: Fall 2014 (Dillof)

Book: Criminal Procedure: Constitutional Constraints Upon Investigation and Proof 7th Tomkovicz

The 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

Who can violate Fourth Amendment?

Government Actors

Government Actor Examples:

· Police

· Govt. Officials

· etc.

Private Citizens acting as an instrument of the state

Factors Considered (States v. Walther, 652 f.2d 788):

· Degree of government encouragement, knowledge, and or acquiescence with regard to the private actor’s conduct (is compensation involved); and

· The purpose underlying the private party’s action – was he pursuing a governmental interest (discovery of criminal activity or evidence thereof), or did he act to promote his own personal or business objectives (protecting against accidents, false claims, or potential liability)

o It does not matter how unreasonable or illegal the private party’s actions are – if they are not acting as an instrument of the state, the evidence found is admissible


What is a Search?

Evolution of Search Analysis:

· Olmstead (1928), wiretap, no actual physical invasion, no trespass, no search.

· Goldman (1961), detectaphone against outer wall of building, no search

· Silverman (1961), spike mike into adjacent wall, no trespass, but search.

· Clinton (1964), thumbtack penetration listening device, trespass and search.

Current Test

Reasonable Expectation of Privacy Test – Katz v. United States (Harlan, Concurrence):

· (subj.) Actual Expectation of privacy exhibited; and

· (obj) Expectation is one that society will recognize as reasonable.

Physical intrusion is no longer necessary in a search analysis

Subjective: The individual must have “exhibited an actual (subjective) expectation of privacy”

· This is logically almost always going to be exhibited

Objective: He must prove that the expectation he exhibited is one that “society is prepared to recognize as reasonable” (or legitimate or justifiable)

· Most search litigation falls under objective prong of Katz

· Three Factors to consider

1. The site or nature of the property inspected – although the 4th amendment protects people, not places, the extent to which a person has a REOP is significantly tied to the place where the police activity occurred or the citizen is located, and/or nature of property.

o Open Fields Doctrine – See exceptions

o Expectation in contraband property, property that one has no lawful right to posses, cannot be legitimate

§ Ex: Drug sniffing dog – if a dog smells luggage, it will indicate marijuana or not marijuana. If it indicates that there is marijuana in luggage, there is no expectation of privacy (Dog can only reveal what it is, not what it isn’t).

2. Extent to which a person has taken measures to keep information, his property, or an activity private.

o Cannot have expectation to anything knowingly exposed to the public or is in plain view

o One who voluntarily conveys info or property to another person “assumes the risk” that the latter individual is a gov agent or will transmit info or property to the government

§ False friends: In Hoffa, we learn that when a person voluntarily speaks to another, i.e. deliberately reveals his mental impressions to a second person, he assumes the risk that the listener is not whom he claims to be, such as a friend, or is a friend who will later betray the speaker.

3. Degree of intrusion experienced is relevant

§ REOP Factors:

o Text (Oliver/Bond/Katz diss.)

o Social impact (Katz/White/Smith diss.)

o Sensitivity (Oliver/Kyllo diss./Jones diss./Jacobsen)

o Public Accessibility (Knotts/Bond/Oliver)

o Legal Accessibility (Ciarolo)

o Physical Intrusiveness (Ciarolo/Bond)

o Belief in Privacy (White/Smith)

o Effort to Hide (Bond)

Examples of Searches

Katz Test:

· (subj.) Actual Expectation of privacy exhibited; and

· (obj) Expectation is one that society will recognize as reasonable.

Katz Test:

· (subj.) Actual Expectation of privacy exhibited; and

· (obj) Expectation is one that society will recognize as reasonable.


Third Party wearing a wiretap (US v. White)

· “If the conduct and revelations of an agent operating without electronic equipment do not invade the defendant’s constitutionally justifiable expectation of privacy, neither does a simultaneous recording of the same conversations made by the agent or by others from transmissions received from the agent two whom the defendant is talking and whose trustworthiness the defendant necessarily risks.”

o If you can get info one way legally, getting it another way is still legal. D, when talking, runs the risk of their conversation being recorded.

Placing a pen register on a phone to record outgoing numbers (Smith v. Maryland)

· “When [D] used his phone, he voluntarily conveyed numerical information to the telephone company and exposed that information that information to its equipment in the ordinary course of business”

· “[D] entertained no actual expectation of privacy in the phone numbers he dialed, and that, even if he did, his expectation was not legitimate”


Flying in a helicopter to view backyard that is fenced in (California v. Ciraolo)

· “The fourth amendment protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home [in] public [areas]”

· “The observations … [occurred] within public navigable airspace in a physically non-intrusive manner … and observed with the naked eye.”

· “It was unreasonable for [D] to expect his marijuana plants were constitutionally protected from being observed with the naked eye from an altitude of 1,000 ft.”

Exceptions to Houses

Open Fields Doctrine (Oliver v. United States):

· One cannot possess a reasonable expectation of privacy in open fields

These lands usually are accessible to the public and the police in the ways that a home, office, or commercial structure would not be.

Threshold question of Fourth Amendment Applicability

Plain view

Analysis for whether open field or curtilage (U.S. v. Dunn):

§ Proximity to the home

§ Whether the area is within an enclosure surrounding the home

§ The nature of the uses to which the area is put

§ The steps taken to protect the area from observation

Arial Viewing

Viewing from 400 ft. and above does not constitute a search

§ Court suggested that under 400 ft. could be the boundary for 4th amendment purposes – Florida v. Riley

o Colorado v. Pollock found 200 ft. helicopter too low due to excessive noise and disruption in the neighborhood

o Drone – which is noiseless?

§ “[In] an age where private and commercial flight in public airways is routine, it is unreasonable for [D] to expect that his marijuana plants were constitutionally protected from such observations” – Florida v. Riley

Listening Devices

See Katz and US v. White

§ What is the nature of the conversation and location?

o Katz was in a private phone booth and outside was bugged – Protected

o Smith was talking with 3rd party – Not protected


US v. Place – The use of a drug-sniffing dog is not a violation of 4th amendment rights

§ Dog detects either the presence or absence of illegal substances, something that someone cannot have a reasonable expectation of privacy

GPS Tracking

Dependent on the duration of the GPS tracking and the method that the GPS tracker is placed

§ US v. Knotts – Tracker placed in a container that was accepted by D and traveled with him in the car (no trespass of vehicle)

o Court stated that there was no reasonable expectation of privacy because where someone is traveling is viewable by all the public

§ US v. Jones – Placed GPS tracker on car and monitored vehicles motion for 28 days

o Majority called this an unlawful search because there was a trespass of the vehicle and, therefore, they did not need to reach the issue of the duration of the monitoring

§ US v. Karo – Similar facts to Knotts, however container brought inside D’s house

o When the police continue to monitor the tracker after it was taken into a home, it is no longer constitutional because the information could not have been obtained through unaided surveillance.

Thermal Imaging

Similar to Karo – Permits police to see into house

Kyllo v. US

§ Obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search.

§ Court stated that the govt. used a device that is not in general public use and information would have been previously unknowable without its use, the surveillance is a search and is presumptively unreasonable without a warrant.

Field Testing

Similar to Dogs – Limited nature of an intrusion represented by a litmus test that can detect only the presence or absence – US v. Jacobson

§ Package delivered to FedEx, where FedEx employees opened package and alerted govt. agents who reopened box.

o Virtual certainty that nothing new would be discovered by the police than was already discovered by the FedEx employees who were not agents

§ Then performed a field test of the drugs to identify that it wa

s stated by informant and corroborated by police.

o Police, in corroborating many of the previous facts, were able to judge that the future predictive statements were probably true.

Draper v. US

§ Informant stated departure and arrival time, duration of trip, return time, what the person would be wearing and that D would be carrying 3 oz. of heroin. Would fly to Florida, stay overnight, and return to Chicago in a family car.

Arrest in Public with PC

· The fourth Amendment is more permissive of a public arrest without a warrant, so long as there is probable cause.

· United States v. Watson – Arrested for stolen credit cards without a warrant. D submitted to a search of their car.

o History and precedent trump the plain language of the text of the 4th amendment.

o Court declined to transform the preference of having a public arrest backed by a warrant into a constitutional rule based on precedent and it being statutorily adopted by congress and many states.

o Dillof – Greater restrictions on searches than seizures in these types of cases.

· Atwater v. City of Lago Vista – Minivan mom driving her children arrested w.o warrant because of seatbelt violation. There is no need for a warrant, regardless of the type of infraction. D argued misdemeanor exception – Court dismissed exception because cops don’t necessarily know the extent of the offense and whether it constitutes a misd. or felony.

o “If an officer has PC to believe that D has committed even a very minor criminal offense in his presence, he may, w.o. violating the 4th amendment, arrest the offender”

Arrest in a Home with Probable Cause

No Warrant

· Absent an exception, even where probable cause exists, police cannot enter a persons home to make a felony arrest without a warrant – Payton v. New York

o Court did make a distinction, if there was a valid arrest warrant, and the police had reason to believe that the suspect was present in the home, they could enter without a search warrant. They do need the arrest warrant though.


Arrest or Search Warrant?

· Depends on where the suspect is located.

· Steagald v. United States – Police entered a third party’s home based on their belief that D was at the home. Police had a valid arrest warrant for D.

o Holding: An arrest warrant is not sufficient under 4th amendment to enter into a 3rd parties home absent exigent circumstances. – Could enter under hot pursuit.

o If police knew of where the person was, there would be a miniscule burden on them to obtain another warrant to enter the 3rd party’s home.

o High potential for abuse if this were allowed.

What’s being entered?

Cops want to … Search

Cops want to … Arrest

Home of person subject to arrest warrant

Search incident to arrest?

Arrest Warrant (Peyton)

Home of person not subject to arrest warrant

Search Warrant (Johnson)

Search Warrant (Steagald)

Knock and Announce Rule

· Before a cop forcibly enters a home to execute a warrant, absent circumstances making it unnecessary, cop must signify the cause of their entry and make a request that the door be opened.

o Not doing so is a factor in determining the reasonableness inquiry of the search or the seizure under the 4th Amendment. – Wilson v. Arkansas

§ Exceptions – (1) threat of violence to the cops, (2) hot pursuit, (3) exigent circumstances [destruction of evidence]