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Roesler_CrimPro_Fall2010 Criminal Procedure Investigation, Chemerinsky & Levenson with Case Supplement, Professor Roesler, Fall 2010 Chapter 1 C. The Purpose of Procedural Rule Powell v. Alabama This is the Appeal of the "Scottsboro Trial"
-Issue was whether the Ds had a right to fair trial, effective counsel, discovery, and due process
-Procedural Rules play a crucial role in ensuring the fair & efficient processing of cases, as well as impact the public perception of the crim justice systems validity & credibility
-Courts and law enforcement must abide by fair procedures w/ respect to Ds rights during trial and investigations Goals of Crim Justice System and Why Care about Procedure: The truth will come out Equal Protection Instills Respect in Other Laws (14th Amendment wants CORRECT RESULT &
FAIR PROCESS) D. Key Provisions of the Bill of Rights Amend IV: Right to be secure in person, house, papers and effects against unreasonable searches
& seizures No warrants issued w/o prob cause, supported by oath or affirmation, describing place to be searched and what to be seized Key const. provision governing police conduct during searches & arrests Amend V: For fed case must have indictment by grand jury Right against double jeopardy, self incrimination Right not to be deprived of life, liberty, or prop w/o due process of law E. Application of the Bill of Rights to the States
1. The Provisions of the Bill of Rights & the Idea of "Incorporation" Provisions of 4th, 5th, 6th, & 8th Amendments didn't apply to states till 2nd half of 20th Century. Twining Case opened the door to begin incorporation of these amendments rights through the 14th Amendment.
2. The Debate over Incorporation "principles of justice so rooted in traditions & conscience of our people as to be ranked as fundamental" and are therefore "implicit in the concept of ordered liberty" 3 Issues Central to Incorporation Debate: (1) History & if the Framers of 14th Amend intended it to apply the BOR to the States (2) Federalism & State/Local Gov. Autonomy (3) Appropriate Judicial Role
3. The Current Law as to What's Incorporated The selective incorporationists prevailed in the debate in that the Supreme Ct. never has accepted the total incorporation approach. (but 1 by 1 the Sup. Ct. has found almost all the provisions to be incorporated) Duncan v. Louisiana Duncan was denied his right to trial by jury Holding: Right to a jury trial is fundamental to American syst of justice, so 14th Amend guarantees right to jury trial in all criminal cases which, were they tried in Fed Ct. would come w/in the 6th Amend guarantees. 4 Provisions of BOR NOT Incorporated: (1) 3rd Amend Right not to have soldiers quartered in house in time of peace (2) 5th Amend Right to a Grand Jury indictment in crim cases (3) 7th Amend Right to Jury Trial in Civil Cases (4) 8th Amend Prohibition on Excessive Fines (hasn't been ruled on) Whenever a case involves a state or local violation of a BOR provision, it involves that provision as applied to the states through the Due Process Clause of the 14th Amend.
4. The Content of Incorporated Rights From a practical perspective, except for the requirement of a 12 person jury and a unanimous verdict, the BOR provisions have been incorporated in exact same content to the states.
-States allowed to have a minimum of 6 person juries in criminal trials
-States may allow11-1 or 10-2 jury votes but not a non unanimous 6 person vote. F. Retroactivity Sup. Ct. decision recognizing a right of crim pro generally applies, to that case, to any cases pending at the time (except pending on habeas corpus), and to future cases.
-but occasionally the Sup. Ct. will apply a crim pro protection retroactively 2 Situations: (1) Where a Sup. Ct. decision places a matter beyond the reach of the crim law, Ie, the ct. holds that certain behavior can't be criminally punished. (2) A "watershed" rule of crim pro would apply retroactively (very rare) To qualify as watershed must: a) Rule must be necessary to prevent an "impermissibly large risk" of an inaccurate conviction. b) Rule must "alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding" (ie. right to counsel wld have been watershed) Chapter 2 A. Introduction
4th Amend embodies a requirement for individualized suspicion; generally can only search someone if there is reason to believe they committed a crime or has evidence of one. The Central requirement is one of reasonableness (so key is to decide what is reasonable) Consistent theme is how to balance the privacy interests protected by the 14th Amend w/
the Gov. need for effective law enforcement techniques/guides. 4th Amend applies only to gov. officials' actions and only applies to action w/in the U.S. (doesn't apply to U.S. law enforcement personnel operating in a foreign country. B. What is A Search?
4th Amend Framework (1) Does the Government action constitute a search or seizure?
(a) Is there Gov action?
(b) Did a search or seizure occur?
If no No 4th Amend issue If Yes Go to ? 2 (2) Does the Government Action Satisfy the Requirements of the 4th Amend?
(a) Is a warrant required? (or does an exception apply?) (b) What level of suspicion is necessary? (Prob Cause? Reasonable Suspicion?) (c) Is the search otherwise reasonable?
If the action doesn't meet the requirements then there is a 4th amend violation Remedy: evidence excluded unless exception applies. Katz v. United States D charged w/ wagering by telephone over multiple states (a fed crime) Evidence was recording of D's convos from Public, but closeable Phone Booth. (Device never actually penetrated booth) No Warrant Obtained Law used to be that there had to be physical entrance into the protected area Rule: What a person knowingly exposes to the public even in own home, is not a subject of 4th Amendment protection.. BUT, what he seeks to preserve as private, even in an area open to the public, MAY be constitutionally protected. 4th Amend protects PEOPLE, NOT PLACES The mandate of the 4th Amend requires adherence to judicial processes &
searches outside the process are per se unreasonable, subject to a few specific established exceptions. Harlans Concurrence (becomes the test) D must have a subjective (actual) EOP It must also be a reasonable EOP (one that society is ready/willing to recognize) this is necessary in order to balance the competing Private v. Gov. interests.
SO,... new test Did Gov action violate a person's subjective and reasonable expectation of privacy?
1. Open Fields The special protection accorded by 4th Amend to the person in their "persons, houses, papers, and effects" is not extended to the open fields Oliver v. U.S. Open's field doctrine permits officers to enter & search an open field w/o a warrant. Katz didn't change this doctrine even though D had tried to make private Open fields aren't "effects' w/in meaning of 4th Amend Not reasonable EOP in open field, even if have subjective one, unless it is in the area immediately surrounding the home (the curtilage) U.S. v. Dunn Question to ask here: Was the area so intimately connected w/ the house (here a separate barn) that is should be placed under the home's "umbrella" of 4th Amend protection?
Curtilage of a home is a case by case inquiry....but usually considered areas used for intimate purposes like the house. Factors: (1) Proximity of area claimed to be cartilage to the home?
(2) Whether the area is included w/in an enclosure surrounding home?
(3) The nature of the uses to which the area is put? What activities occur on or in the area? (but shld be what a place is generally used for not what is now) (4) What steps were taken to protect the area from observation by the public?
2. Aerial Searches Cali v. Ciraolo Challenge to a Warrant that was based on a search that D argues was unreasonable.. Subjective EOP? Yes, high fences put in place & was w/in cartilage Reasonable? "What a person knowingly & willingly exposes to the public, even in his own home or office, is not the subject of 4th Amendment protection" (PUBLIC EXPOSURE DOCTRINE) A Person doesn't have a REP in what he or she knowingly exposes to the public. Florida v. Riley (low flying helicopter but w/in legal altitude, which was doing surveillance and saw through greenhouse in back yard pot growing) Ct. said no expectation of privacy from low legally flying aircraft in all of back yard and so not a search w/in meaning of 4th Amend.
O'connor Concurrence (said should ask if is common place for public to do this so as to make it an EOP that society wouldn't be willing to call reasonable)
3. Thermal Imaging of Homes Kyllo v. U.S. Obtaining by sense enhancing technology any information regarding the interior of the home that could otherwise not have been obtained w/o physical "intrusion into a constitutionally protected area" constitutes a search, a least where the technology in question is not in general public use.... So then what is interior of home?
What constituted in general public use?
4. Searches of Trash California v. Greenwood Ct. found that there was no REP in what a person "chooses" to discard Issue: Does 4th Amend prohibit warrantless searchs & seizures of garbage left for collection outside the cartilage of a home?
No, since D exposed garbage to public enough to defeat 4th Amend protection claim. It is common knowledge that plastic bags left on or at the side of a public street are readily accessible to animals, children, scavengers, snoops & other members of public and so on notice that his done and no REP.
5. Observation & Monitoring of Public Behavior U.S. v. Knotts (PRE KYLLO)(no search) Beeper placed in chloroform container & tracked to D's locale. RULE: THERE IS NOT REP IN YOUR MOVEMENT ON THE PUBLIC HIGHWAYS/ROADWAYS "Nothing in 4th Amend prohibited police form augmenting the sensory faculties given them at birth w/ such enhancement as scient & technology afforded them" (THIS ONLY APPLIES NOT IF THE TECHNOLOGY IS IN GENERAL PUBLIC USE) U.S. v. Karo (yes search) Beeper in can of ether which was not tightly surveyed & travelled all over the place w/ diff people. Problem here was that it showed that is was w/in a house which is strongly protected. Issue is What is sufficiently "public behavior"?
U.S. v. White (ct said not search when informant wore wire and recorded convo w/ D. cause was convo w/ third person so no REP) Also, inspection of bank records not searches cause banks parties to any transaction & have knowledge of them and also have to file reports about certain ones. Also, People have not REP in phone #s they dial or receive calls from. (pen registers)
Smith v. Maryland Police installed device on lines at phone co. place and recorded the #s D dialed and got calls from. Said not search here cause didn't reveal anything intimate, no convos like Katz, and because conveyed the #s dialed to 3rd party (phone co.) had no REP in the information. (Public Exposure)
6. Use of Dogs to Sniff for Contraband U.S. v. Place Cocaine found by dog in closed luggage at airport "person has a privacy interest in the content of personal luggage that is protected by 4th amend but A "canine sniff" by a well-trained detection dog, doesn't require opening the luggage, it doesn't expose noncontraband items, The info obtained is limited to contraband Holding: Exposure of respondent's luggage, which was located in public place, to a trained canine dog, didn't constitute a "search" w/in 4th Amend. Illinois v. Caballes A seizure that is lawful at its inception (ie prob cause to pull over) can violate the 4th Amend if its manner of execution unreasonably infringes interests protected by the const." Official conduct that doesn't "compromise any legitimate interest in privacy" is not a search subject ot 4th Amend. D has not interest in possessing contraband and it cant be deemed legitimate, ans o gov. conduct that only reveals the possession of it doesn't compromise a legit priv interest. The expectation that certain facts wont come to attention of police is not the same as an interest in privacy that society is prepared to consider reasonable. "the use of a well-trained narcotics detection dog, one that "doesn't expose noncontraband items that otherwise would remain hidden from public view, during a lawful traffic stop, generally doesn't implicate legitimate privacy interests" C. The Requirement for Probable Cause
1. What is Sufficient Belief to Meet the Standard for Prob Cause Ask: Whether the facts & circumstances before the officer are such to warrant a man of prudence and caution in believing that the offense has been committed or the evidence is located there"?
Illinois v. Gates The Test is a Totality of the Circumstances: The magistrate makes a "commonsense decision whether, given all the circumstances set forth in the affidavit, including the "veracity" and "basis of knowledge" of persons supplying hearsay info, there is a "FAIR PROBABILITY" that contraband or evidence of a crime will be found in a particular place...
This test applies to all determinations of prob cause, not just ones w/ informants tips "Fair Probability" is not proof beyond reasonable doubt or a preponderance of evidence, but is more than reasonable suspicion" Maryland v. Pringle The belief of guilt must be particularized w/ respect to the person to be searched or seized.
2. Objective or Subjective Standard?
Whren v. U.S. Its objective, whether the reasonable office could have found probable cause under the circumstances; the subjective intent of the office doesn't matter. D. The Warrant Requirement
1. What Info Must Be Included in Application for Warrant It must include the information that provides a basis for concluding that there is prob. Cause (ie what looking for) May be based on hearsay Specify time period for its execution (reasonable length) Must be issued by a neutral & detached magistrate
2. What Form Must the Warrant Take THE WARRANT MUST DETAIL WITH SPECIFICITY THAT WHICH IS TO BE SEARCHE DOR SEIZED. Andresen v. Maryland Must not be too general as to what looking for and should specify the items which believe searching for in relation to the actual crime that is being investigated not any evidence generally of any crime. Groh v. Ramirez The warrant must contain the same specificity as the the places to be searched and things to be searched and seized as is used in the affidavit which is used to show prob cause and to apply for the warrant. It needs to describe with particularity a description of the type of evidence sought.
3. What Are the Requirements for Executing Warrants?
-Warrant generally must be execute during daytime hours (6am to 10pm), unless the judge for good cause expressly authorizes another time. FRCrim Pro 41
-But Fed Statute says not restriction for searches of narcotics as to time a. How May Police Treat Those Who Are Present When Warrant Executed Ct. has held a person who happens be present in premisis that subj. to search cant be searched just by virtue of being there. Ybarra v. Illinois (must be particularize prob cause suspicion as to that person) But: Michigan v. Summers: Ct. held that when search of residence, those present at the time of the search may be detained. (prevents flight in case incrim evid.
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