CRIMINAL PROCEDURE
I. Introduction to the Exclusionary Rule
a. What is the exclusionary rule?
i. Judicially created rule which provides that evidence obtained by violating the defendant’s constitutional rights may NOT be introduced by the prosecution, at least for purposes of providing direct proof of the defendant’s guilt.
1. Only applies where evidence is obtained in violation of the Constitution
ii. Two rationales:
1. Deterrence
a. Exclusion of such evidence will act as a deterrent to violations of the Constitution
i. Police will not have a motive to conduct unlawful searches, seizures, interrogations, etc., if they know that they will not be able to use its fruits in evidence
2. Fairness
a. Integrity of the judicial system requires that the courts not be made “party to lawless invasions of constitutional rights of citizens by permitting unhindered governmental use of the fruits of such invasions.”
iii. Exclusionary Rule is the MAIN mechanism to enforce the 4th Amendment
b. Fourth Amendment:
i. “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.”
1. What does it mean?
a. Who are the people?
b. Unreasonable search or seizures
i. What is a search?
ii. What is a seizure?
iii. What is unreasonable?
c. Warrant
i. Is it needed?
ii. Are there presumptions?
d. Probable Cause
i. When is it needed?
c. Weeks Case:
i. Cops receive information about lottery tickets in an apartment; Weeks is in custody; cops get into the house by getting a key from the neighbor
1. Was there consent to enter the house?
a. Generally, a warrant is needed to enter houses
i. This was an illegal search
1. Arrest of Weeks was planned
a. Requested for the documents to be returned
2. After Weeks
a. Evidence obtained illegally is admissible
d. Wolf v. Colorado
i. Court says it is okay for states that have not adopted the exclusionary rule to interpret the 4th amendment differently
1. Notion of incorporation through 14th amendment came about in the 20th century
e. Mapp V. Ohio
i. Overrules Wolf
ii. Court:
1. Lays the foundation for today’s standards and procedures; regulates police
a. As a result
i. More than half the states adopted the exclusionary rule
ii. Police culture changed
2. Sees a need to exclude illegally obtained evidence to prevent unlawful searches and seizures
a. Needed to prevent police unlawfulness
i. If obtained illegally / unlawfully, it is not admissible
iii. “The 4th Amendment right to be free from unreasonable searches and seizures and to have any illegally seized evidence excluded from criminal trials.”
f. Plain View Doctrine:
i. Police DO NOT violate the 4A when they see an object in plain view from a position in which they have a right to be.
II. Defining Searches
a. Katz
i. Facts:
1. FBI agents placed an electronic eavesdropping equipment on the outside of a public phone booth from which Katz, a bookmaker, conducted his business.
ii. Change:
1. Katz rejects the traditional notion that the 4th amendment was almost always limited to private property owned by the subject of the search.
iii. U.S. Supreme Court Holds:
1. The 4A applies to any government search or seizure that interferes with a person’s “reasonable expectation of property,” even if there is no interference with property
2. 4A protection of people:
a. “The 4th Amendment protects people, not places.”
i. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection
ii. BUT, what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.
3. 4A protection of privacy:
a. Harlan’s Concurrence Two-Pronged Test regarding Privacy:
i. A person have exhibited an actual (subjective) expectation of privacy, and
ii. The expectation be on that society is prepared to recognize as reasonable
b. Analysis of test:
i. Cannot intrude in an individual’s reasonable expectation of privacy
1. Society determines what is a reasonable expectation of privacy
a. RE: Katz: does it matter that he was visible through the phone booth?
i. No because he was not trying to be private about his presence, just his conversation.
b. White
i. Facts:
1. An informer was wired to transmit to narcotics agents conversations with the defendant occurring in a restaurant, in the defendant’s home, and in the informer’s car. The informer did not testify at the trial, but the agent who received the transmissions testified as to their content.
ii. Change:
1. Somewhat erodes Katz
iii. Holding:
1. No 4A right was involved:
a. No expectation of privacy
i. When a person misplaces his trust, and makes incriminating statements to an “unbugged” informer, he does not have any “justifiable expectation of privacy” which has been violated
1. “there is no 4A protection for a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.”
b. Wiring irrelevant
i. Given there is no expectation of privacy, it makes no difference whether the informer is “bugged” or not; the addition of recording or transmitting equipment merely enhances the reliability of the evidence
2. Issue of reliability:
a. White necessarily assumes that a person cannot “justifiably” trust and talk to anyone, regardless of how close
i. It changes the operative test from Katz’s “reasonable expectation of privacy” to one based on a “possible risk of disclosure.”
b. Does an informant violate the 4A?
i. US has never limited undercover informants
iv. Dissent:
1. Justice Douglas
a. “Must everyone live in fear that every word he speaks may be transmitted or recorded and later repeated to the entire world?” “A chilling effect” White would have on speech and social intercourse.
c. Smith v. Maryland
i. Facts:
1. The police, with the assistance of the phone company, installed a pen register device in the phone company offices; the register recorded all the numbers called by defendant from his home phone, but did not monitor the conversations.
ii. Change:
1. Does not overrule Katz, but a difference: one who uses a phone, even in his own home, has no justifiable expectation of privacy with respect to the numbers being called
iii. Holding:
1. One who uses a phone, even in his own home, has no justifiable expectation of privacy with respect to the numbers being called
a. Defendant has no legitimate expectation of privacy with regard to the numbers he dialed (as opposed to the content of the conversations)
h the area is put
d. The steps taken by the resident to protect the area from observation by people passing by
2. Discussion:
a. Oliver has no expectation of privacy despite his right to exclude others.
i. Society is not ready to admit a reasonable expectation that people won’t trespass in an open field.
iii. Does it matter how the information is obtained?
1. Aerial Observation
a. Assuming that the aircraft is in public, navigable, airspace, anything the police can see with the naked eye from the airspace falls within the “plain view” doctrine
b. California v. Ciraolo
i. Marijuana in backyard case
1. Police got a tip that defendant was growing marijuana in his backyard. They rented a private plane, flew over his house at an altitude of 1000 feet (within navigable airspace), spotted marijuana plants growing in his backyard, thus clearly showing an intent to shield it from passers-by
ii. Holding:
1. The overflight did not violate any expectation of privacy that society is prepared to honor
a. The mere fact that an individual has taken measures to restrict some views of his activity does not preclude an officer’s observations from a public vantage point where he has a right to be and which renders the activities clearly visible
iii. Dissent:
1. Police were doing MORE than a private flier would do
c. Florida v. Riley
i. Helicopter aerial surveillance – police are able to fly much lower
ii. Holding:
1. Even a view taken by the police from a helicopter flying only 400 feet above ground still falls within the “plain view” doctrine, and is therefore not a search
a. Helicopters can be operated at virtually any altitude as long as they pose no safety hazard
2. O’Connor:
a. Believed that the fact that the flight was legal was not dispositive
i. Instead, if a flight takes place at a level lower than members of the public generally fly, a homeowner will have a justifiable expectation of privacy and the flight will be a search
b. However, O’Connor believed that the 400-foot level was not such a low altitude
iii. Dissent:
1. The public does not commonly fly 400 feet above residences, so the police helicopter was not where it had a “plain view” of defendant’s house, and there was a 4A search
2. Trash and other abandoned property:
a. California v. Greenwood
i. Facts:
1. Greenwood has heroin in the house, takes trash out, and cops seized the bag.
ii. Holding:
1. Trash will normally not be material as to which the owner has an objectively reasonable expectation of privacy.
2. Rule:
a. When a person puts trash out on the curb to be picked up by the garbage collector, there is no expectation of privacy and the police may search that trash without a warrant.
i. Rationale:
