CRIMINAL PROCEDURE
4th AMENDMENT AND THE STATES
· Wolf v. Colorado (Pg. 54)
o Law
§ Illegal search and seizures don’t apply to state cases
o Facts
§ A Mexican is in prison and cops go this home in Mexico and collect evidence; does the 4th Amendment apply to search and seizure owned by non-resident aliens located in a foreign country
· No, illegal searches and seizures refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of the community
§ A private detective is hired and goes through Jill’s belongings and finds evidence that links her to a murder, if he turns this over to police can she object on grounds of 4th amendment
· No, only limits governmental action, not private search and seizures
§ What if landlord searches tenants possession
· No, same as above, this is a private search and seizure
§ What if airline searches an employee
· Again, no, this is a private search and seizure
§ How do you get into criminal court
· Raise a constitutional issue (i.e. illegal search and seizure)
o Court will look at entire case (de novo) because 4th amendment issues are fact determined; was it reasonable or unreasonable
· Arrest
o Def: taking into custody of the person
o You need a warrant or probable cause
o Facts sufficient to probable cause that D has committed this crime
o Review by a detached and neutral magistrate
o Then warrant will issue – goes to police and they arrest
· Sworn statement
o George and Butt people
§ File a claim
§ Go to prosecutor for violation of nuisance and probably a $10 fine
§ You sign affidavit saying its true
§ They will serve with summons which starts the process like an arrest
§ 4th amendment has warrant clauses – MUST have probable cause
· General
o Lasted as long as ruler and allowed to search and seize anything (this was in the “New World”)
· Search
o Warrants issued to search and seize, must be named particularly, and have limited life span
o Governed by reasonableness
o Must have limited life span because contraband, etc. can be moved easily; so what was true during time of warrant may not be true the day of the search
· Arrest
o Doesn’t lapse with time
o Governed by reasonableness
o Explanation
§ Reasonable – fair
§ Search – looking
§ Seizure – capture
o Examples
§ What if your uncle is a cop and went through your car and found information linking you to a crime?
· Yes evidence is a violation of due process if within the scope of your uncle’s employment, however evidence won’t be allowed in court (under this case)
· But if your uncle isn’t on duty, this would be a search by a private person and therefore wouldn’t be illegal
BIRTH OF EXCLUSIONARY RULE
· Weeks v. US (Pg. 59)
o Law
§ Police can’t go search and seize property without a warrant
§ If we have rights guaranteed by the constitution, what happens when these rights are violated?
· The constitution doesn’t provide a remedy
· The remedy becomes the exclusionary rule
o Evidence that has been violated because of constitutional rights is to be “excluded”
o This is the remedy for bad police work
§ Right to privacy standards
· Objective – this is what a reasonable person thinks should be
o Is your right to privacy in the barn something society is willing to protect?
· Subjective – this is what you personally think should be
o Is that your barn out there? How do I know that? Because I said so.
§ The exclusionary rule applies not only to illegally obtained evidence (i.e. originals) but to the fruits of the illegally obtained evidence as well (i.e. copies)
o Facts
§ P was arrested and police went in twice, warantless and recovered incriminating evidence to be used at trial
§ If letters and private documents can be seized and held and used against a citizen the protection of the 4th amendment is of no value and might as well be stricken from the constitution
§ A person hurt by an unlawful search and seizure of property or by deprivation of property may move for the property’s return
§ A D may move to suppress evidence in the court where the trial will occur
· Suppose police unlawfully search P home and seize contraband, such as illegal narcotics. Should P seek its return under the rules stated above?
o Yes, if it was an unlawful search and seizure, they violated her 4th amendment rights and the evidence obtained is inadmissible in court
§ The court in Weeks only applied the exclusionary rule to federal authority to states were conducting unreasonable search and seizures and then deliver evidence to feds on a “silver platter”
· In Byers the court held that this “silver platter” didn’t apply to evidence obtained unlawfully
§ Rochin principle – police conducted search and seizure and when they got to the bedroom they saw capsules. When asked what they were P swallowed them, so they pumped his stomach and discovered they were morphine.
·
he time of the warrant request – it is a future conversation
§ In 2002, Bush signed an order authorizing the National Security Agency, without court approval, to eavesdrop on the international telephone calls of persons residing in the US to persons outside the country suspected of terrorism
o Explanation
§ This was a violation of 4th amendment search and seizure
· Because P relied that private conversations wouldn’t be used against him
§ The concurring opinion
· Standard for determining whether a police conduct is a search
o Objective
§ That the expectation be one that society is prepared to recognize as “reasonable”
o Subjective
§ An actual (subjective) expectation of privacy
o Examples
§ What if I tell my friend, in a crowded place, that I have committed a murder and someone overhears, would this be a “search” under the 4th amendment if this person tells someone?
· I think this would be a reasonable search, we are in public and whatever I may say, I know that people who are near can hear what I say
§ What if, instead of a crowded place, we are at my house?
· I don’t think this would be a reasonable search because I have an expectation of privacy in my home and if someone were to listen to what I say in my home this would be a violation of the 4th amendment
· US v. White (Pg. 83)
o Law
§ 4th amendment has no protection to a person who voluntarily confides their wrongdoing to someone and that person reveals it
§ There are various ways the government listens to conversations
· Secretly eavesdrop on a conversation between A and B (Katz)
· Government may participate in the conversation itself, as when A talks to B, who turns out to be an undercover police officer or friend-turned-government-agent (Hoffa)
· False friend B will tape record the conversation or be “wired” with a transmitter (White)
o Facts
§ White told a “wired” informant about his illegal narcotics transactions that relayed the information to police.
§ So how is this different than Katz?
