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

Criminal Procedure A OUTLINE

Winter 2011, Dillof


– Class deals with 4th, 5th, 6th, and 14th amendments

– 4th amendment is 75% of the class


– Text of 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.

o Has to be a violation by the Government or a State Actor (wither govt employees or those hired by govt)

§ If not a govt employee: Look to length of relationship, autonomy, compensation

o Applies to the state through the 14th Amendment.

§ Selective incorporation: whole amendment applies to the states (Duncan v Louisiana)

o Rules v Standards:

§ Rules: bright line, rigid (ex: speed limit) no exceptions

§ Standard: amorphous, flexible, over and under inclusive in practice (ex: best interest of the child)

What is a SEARCH?

o First look to see if it is a search (not everything is a search)

o If not a search, govt can do it without violating 4th Amend.

o To violate the 4th Amend., must meet two criteria: 1) be unreasonable and 2) be a search

o Pre-Katz Approach: Must be a physical intrusion to be a search

What is a Search TEST: Harlan’s 2 part Katz Test now used

o 1) actual subjective expectation of privacy

o 2) and that the expectation is one that society is prepared to recognize as reasonable

– Katz v United States (1967) pg. 4 [Definition of Search]:

o Facts: Katz was in a phone booth making a wager which was a violation of federal law, feds attached electronic listening device to outside of the public phone booth; Katz was convicted for illegal gambling on that evidence

o Issue: What is a search

o HOLDING: Old standard of physical penetration as the criteria for a search was arbitrary, new standard- look to whether government has violated privacy on which a person has justifiably relied.

o A search is when a privacy that is justifiably relied is violated (4th amendment protects people not just property). [standard]

§ Factors: shut the door, pay the toll

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

§ Public policy: telephone as private communication.

o Harlan Concurrence TEST: says the rule is two part

§ 1) actual subjective expectation of privacy

§ 2) and that the expectation is one that society is prepared to recognize as reasonable

– United States v White (1971) pg. 9 [False Friends]:

o Facts: White was convicted of illegal narcotic transactions; govt agents overhear conversation btw White and govt informant by radio transmitter concealed on the informant. Trial CT said not a search; App CT said that due to Katz, it was a search; goes to SC

o Issue: was this a search?

o HOLDING: No search; White was talking to someone else, can be no expectation of privacy

o TEST: Katz test (justifiable expectation of privacy) + assumption of risk

o Harlan Dissent: Criticizes “assumption of risk” analysis; need to balance citizen rights with government’s needs (worried about the impact on citizens of govt activity)

– Smith v Maryland (1979) pg. 14

o Facts: Lady is robbed, starts getting threatening and obscene phone calls from a man who ID’ed himself as the robber; police made phone company install a pen register to record numbers dialed from the Smith’s house; Smith is indicted for robbery

o Issue: Is using a device that only records the phone numbers dialed (and not the conversation) a search?

o HOLDING: This was not a search; No subjective expectation of privacy

§ Phone company is a state actor here

§ No expectation of privacy in the phone numbers you dial, does not meet the 1st prong of test

§ Would have to know that phone companies keep track of the numbers, they are on the bill

§ (is becoming more rule like)

o TEST: Harlan’s 2 part Katz Test now used

§ 1) actual subjective expectation of privacy

§ 2) and that the expectation is one that society is prepared to recognize as reasonable

o Stewart Dissent: This is a search bc phone numbers reveal something, want to protect

o Marshall Dissent: Concerned about govt abuse to harass disfavored groups and organizations

– California v Ciraolo (1986) pg. 21:

o Facts: Ciraolo was growing marijuana in backyard; cops get an anonymous tip; fly over Ciraolo’s backyard in an airplane; see marijuana- get warrant and seize drugs

o Issue: Is the flying of a plane over the backyard a search?

o HOLDING: Not a search; does not meet

Kyllo v United States (2001) pg. 31: [changes in technology]

o Facts: Police use a thermal imager to detect if Kyllo was growing marijuana inside of his house; scan from across the street; use as evidence to get a warrant to arrest Kyllo

o Issue: was the use of the thermal imager a search?

o TEST: New Test if in the home: if use technology to get information on the interior of a home that could not otherwise have been gotten without a physical intrusion into the protected area- then a search

§ Device was not in public use,

· Look to general availability, (dissent says now 10,000 thermal imaging devices in public- so has to be more than 10,000)

§ Doesn’t reject Katz test, just doesn’t use it

§ 4th amend protects places

o HOLDING: Was a search

o Scalia Dissent: wants a bright line rule

– United States v Jacobsen (1984) pg. 40:

o Facts: Police open up a package that was previously opened by Federal Express employees (private parties) and perform a test on the white powder inside

o Issue: 2 issues: 1) police opening of package was a search? 2) the chemical field test on powder was a search?

o HOLDING: Neither are searches

§ The opening of the package enabled the agent to learn nothing that had not previously been learned in the private search (by Fed Ex)

· Police would learn nothing new

§ The field test was outside 4th Amend bc it could only disclose one fact previously unknown to the agent- whether it was contraband (drugs) or not

· No compromise of legitimate interest in privacy- bc no legitimate privacy interest in contraband.

o TEST: Not a search if police would learn nothing new; and or it is contraband that is found.


– Warrants: comes from the text of the 4th amendment

o Search: look for contraband, evidence or fruits of crime

o Arrest: can authorize a search as well

– Only get a warrant if have probable cause