Criminal Procedure Outline

Searches

• Congress cannot compel a defendant to provide incriminating private papers (Boyd), though the government can seize evidence whether or not it was instrumental to the crime (Warden v. Hayden). Katz analysis centers on whether defendant had a reasonable expectation of privacy.

• Huq: There are four values underlying Fourth Amendment analysis: positive law (such as the law of trespass); special places (the home, e.g.); private information; and social norms (reasonable expectation of privacy). The Court seems to find the private places consideration useful because private places tend to include private information. Is the Fourth Amendment majoritarian (in the social norms sense) or counter-majoritarian (in the sense of Entick and Wilkes political prosecutions)?

• Search

  • Placement of a GPS tracker on a defendant’s vehicle, such that the placement would constitute common-law trespass (Jones) (positive law or private spaces)

  • Use of a drug-sniffing dog in the curtilage of a defendant’s home, even where it would not constitute trespass (Florida v. Jardines)

  • Investigatory squeeze of defendant’s luggage (Bond)

  • Use of thermal imaging technology outside a defendant’s home (Kyllo) (private spaces and facts)

• Not a search

  • Surveillance of a greenhouse interior from a helicopter, in accordance with FAA regulations (Florida v. Riley)

  • Electronic recording of an incriminating conversation with a police informant (White)

  • Rifling through defendant’s publicly displayed trash bins (California v. Greenwood)

    • What Greenwood and Riley have in common is that the investigative technique is expensive in terms of cost or manpower, so unlikely to be abused

  • Use of a drug-sniffing dog at an airport (Place)

  • Installation of an electronic tracking device in a container delivered to defendant (Karo) (the space isn’t private)

Seizures

• A show of authority that is effectual; seizure analysis is a threshold analysis—once we have determined that there was a seizure, a new line of inquiry obtains.

• Seizure

  • Acquisition of evidence to which one occupant consents but another objects (Georgia v. Randolph)

• Not a seizure

  • Suspect consents to the search, even if he did not subjectively know that he could refuse consent (Drayton)

    • Schneckloth totality-of-the-circumstances test for consent: Was it voluntarily given and not the result of express or implied duress or coercion? The subject’s knowledge of a right to refuse is a factor, but the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.

  • Suspect abandons the seized object while fleeing (California v. Hodari D.)

Warrants and probable cause

• The test for probable cause is a totality-of-the-circumstances test about the informant’s veracity and reliability and the basis of his knowledge (Illinois v. Gates). Testimony of a police officer taken alone is not probable cause (Nathanson).

• Huq: What do we think of grading probable cause to be offense-sensitive? (That is, as crime increases and more serious crimes replace minor offenses, probable cause requirements weaken?)

• Warrant/probable cause required

  • When the exigency prompting the warrantless search ends (Mincey v. Arizona)

  • When the offense is insufficiently serious to create a hot-pursuit exigency (Welsh v. Wisconsin)

  • To invoke the plain view doctrine (Arizona v. Hicks)

    • To invoke plain view, the police officer must be lawfully present, must have a lawful right to access the object, and the object’s incriminating nature must be immediately apparent (Horton v. California)

  • To enter a home (Payton v. New York), though Watson appeared to preserve the common law rule that warrantless arrests are valid as long as there is probable cause

  • To search the home of someone other than the arrestee (Steagald)

  • To search, incident to an arrest, areas of a home other than the area “within the immediate control” of the defendant (Chimel v. California)

• Warrant not required

  • When entering a home to fix a nuisance (Rohrig, 6th Cir.)

  • When entering a home to prevent the destruction of evidence (Kentucky v. King)

  • To open a bag which the police have probable cause to believe contains contraband within a car which they lack probable cause to search (California v. Acevedo)

  • To open individual packages within a car which they have probable cause to search (Wyoming v. Houghton)

  • To arrest suspects for a minor criminal offense (Atwater v. City of Lago Vista)

    • Note on arrests: invasive bodily searches are allowed at jail, even if the suspect was arrested for a minor offense (Florence v. Board of Chosen Freeholders)

  • To search the passenger compartment of an arrestee’s car (New York v. Belton), but only if the arrestee can still access the car’s interior and it is reasonable to believe that evidence of the arrest offense might be found in the car (Arizona v. Gant)

Reasonable, articulable suspicion

• The difference between reasonable suspicion and probable cause: reasonable suspicion can be suspicion of criminal activity in general, while probable cause must be particularized

• Where the police officer reasonably concludes that criminal activity may be afoot and that persons with whom he is dealing may be armed and dangerous (Terry v. Ohio)

  • Terry moves the locus of operative discretion from the legislature to the police

  • A defendant’s unprovoked flight during a Terry stop can create reasonable suspicion (Illinois v. Wardlow)

  • A Terry stop is justified on the basis of any traffic offense (Whren)—thus the traffic violation can be a pretext for the stop, and we don’t care about the officer’s subjective intentions

• Doesn’t justify a stop-and-frisk resulting from an anonymous tip that a person is carrying a gun (Florida v. J.L.)

• To justify a stop-and-frisk in general? (Floyd v. City of New York, S.D.N.Y.); the racial implications of policing present a Fourteenth Amendment, not a Fourth Amendment, question

  • A stop requires reasonable suspicion that there is criminal activity...

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