Introduction To Criminal Procedure Three major topics

1. 
   Introduction To Criminal Procedure
   

1. 
   Three major topics
   
   1. 
      4^th Amend. ö Searches and seizures
      
   2. 
      5^th Amend. ö Interrogation (privilege against self-incrimination)
      
   3. 
      6^th Amend. ö Right to counsel
      

2. 
   Issues
   
   1. 
      Tension between govt and individual - competing interests
      
      1. 
         Govt intruding into liberty and freedom of individual
         
   2. 
      Compromises and balance changes
      
   3. 
      Federalism
      

3. 
   Constitution and Bill of Rights
   
   1. 
      Sources of criminal procedure
      
      1. 
         Constitution
         
      2. 
         Statutes and Rules of Crim Pro.
         
      3. 
         States (in some states, there are more rights in state constitutions than in US Const.)
         
      4. 
         Common law
         
      5. 
         Local practice
         

4. 
   Incorporation Doctrine
   
   1. 
      Bill of Rights - limit on fed govt, not limit on states. Designed to protect citizens from being deprived their rights by fed govt; didn’t worry about states at that time
      
   2. 
      14^th Amend. (enacted 1868) – due process now applies to states
      

5. 
   Selective incorporation
   
   1. 
      USSC on case by case basis decides which rights in Bill of Rights are so “fundamental to our concept or ordered liberty” that they must also apply to states – Duncan v. Louisiana (1968)
      
   2. 
      Constitutional requirements binding on states:
      
      1. 
         4^th Amend.
         
         1. 
            prohibition against unreasonable searches and seizures – Wolf v. Colorado (1949)
            
         2. 
            exclusionary rule requiring that the result of a violation of this prohibition not be used as evidence against D – Mapp v. Ohio (1961)
            
      2. 
         5^th Amend.
         
         1. 
            privilege against compulsory self-incrimination – Malloy v. Hogan (1964)
            
         2. 
            prohibition against double jeopardy – Benton v. Maryland (1969)
            
      3. 
         6^th Amend.
         
         1. 
            right to a speedy trial – Klopfer v. North Carolina (1967)
            
         2. 
            right to a public trial – In re Oliver (1948)
            
         3. 
            right to a trial by jury – Duncan v. Louisiana (1968)
            
         4. 
            right to confront witnesses – Pointer v. Texas (1965)
            
         5. 
            right to compulsory process for obtaining witnesses – Washington v. Texas (1967)
            
         6. 
            right to assistance of counsel in felony cases (Gideon v. Wainwright, 1963) and in misdemeanor cases where imprisonment is imposed (Argersinger v. Hamlin, 1972)
            

1. 
   8^th Amend.
   
   1. 
      prohibition against cruel and unusual punishment – Robinson v. California (1962)
      
1. 
   Not binding on States
   
   1. 
      Right to indictment by a grand jury for capital and infamous crimes – Hurtado v. California (1884)
      
   2. 
      Not yet determined whether 8^th Amend. prohibition against excessive bail creates a right to bail (or whether it simply prohibits excessive bail where the right to bail exists) and whether its binding on states. Most state constitutions create right to bail and prohibit excessive bail.
      
2. 
   Constitutionalized – all federal Sup. Ct. standards apply to states as well
   

2. 
   The Problem: The Bad Old Days
   

1. 
   Failures
   
   1. 
      Scottsboro – 9 black men accused of raping white women; Ds claimed they were denied fair trial.
      
   2. 
      Powell v. Alabama (USSC 1932) [Scottsboro in court]
      
      1. 
         Sequence of events:
         
         1. 
            March 25, 1931 - crime occurred
            
         2. 
            March 31 - indictment
            
         3. 
            April 6 - trial began
            
            1. 
               2 lawyers appointed day of trial
               
            2. 
               trial done in 1 day – all Ds found guilty
               
      2. 
         Issue: Whether the 9 defendants (black men) were denied a fair trial, in violation of due process and equal protection of the laws under 14^th Amend. in their trials for raping 2 white women. Whether they were denied the right to counsel in violation of due process.
         
      3. 
         Held:
         
         1. 
            D’s due process rights violated when trial court failed to give them reasonable time and opportunity to secure counsel before trial.
            
         2. 
            In a capital case, where D is unable to employ counsel and is incapable adequately of making his own defense b/c of ignorance, feeble mindedness, illiteracy etc, it is the court’s duty, whether requested or not, to assign counsel for D to comport w/ due process; that duty is not discharged by an assignment at such a time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case.
            
      4. 
         ** Note: 6^th Amend. right to counsel didn’t apply to the states until 1963 (Gideon v. Wainwright)
         

3. 
   FOURTH AMENDMENT [Search and Seizure]
   

1. 
   Overview and Text
   
   1. 
      Text
      
      1. 
         4^th Amendment ö people should be free in their persons from unreasonable searches and seizures
         
      2. 
         3 Parts
         
         1. 
            Right of people to be secure in their persons – creates a right
            
         2. 
            Reasonableness clause - against unreasonable searches and seizures
            
            1. 
               only protects persons, houses, papers and effects - thus may be limits
               
            2. 
               unreasonable – depends on circumstances
               
         3. 
            Warrant clause
            
            1. 
               warrants based on probable cause,
               
            2. 
               supported by oath or affirmation,
               
            3. 
               particular description of place to be searched or person to be seized
               
      3. 
         Difference: search based on reasonableness and search based on warrant
         
         1. 
            Search based on warrant – judicial approval, external evaluation of probable cause (judge determines reasonableness)
            
         2. 
            Search based on reasonableness – no external evaluation – no pre-search protection (warrant not necessary if search reasonable)
            
            1. 
               ex: cop on street can search person if based on emergency
               

2. 
   Fundamental question: What interest does the 4^th Amend. does it protect? [Katz]
   
   1. 
      Protects people, not places
      
   2. 
      Eliminates requirement of physical intrusion
      

3. 
   4^th Amend. is limit on GOVT
   
   1. 
      Restricts govt agent from enforcing the law, protects citizens
      
   2. 
      Applies to govt conduct, not private conduct
      
   3. 
      Applies to all govt agents, not just police or law enforcement
      
      1. 
         e.g. school principals
         
   4. 
      Geographical limits
      
      1. 
         applies in US, unlikely to apply in American searches in foreign countries
         
      2. 
         illegal residents in US – undecided whether it applies here
         
   5. 
      Weeks (1914) (p. 59)
      
      1. 
         D’s house searched separately by both state and federal law enforcement
         
      2. 
         Held: Both searches violated 4^th Amend. Evidence excluded in federal court. But state agents not covered, so evidence obtained by state officials admissible in state court.
         

4. 
   To have 4^th Amend. right, person must have reasonable expectation of privacy w/ respect to the place searched or item seized.
   

5. 
   Searches and seizures must be reasonable to be valid under 4^th Amend.
   
   1. 
      Reasonableness usually means that police must get a warrant before conducting search
      
      1. 
         But there are exceptions where warrant is not required:
         
         1. 
            No 4^th Amend. violation (no standing) – Katz
            
         2. 
            Consent
            
         3. 
            Exigent circumstances, hot pursuit
            
         4. 
            Search incident to lawful arrest
            
         5. 
            Automobile exception
            
         6. 
            Plain view and touch
            
         7. 
            Stop and frisk
            

6. 
   Seizures of the Person (incl. arrests) must be reasonable to be valid under 4^th Amend.
   
   1. 
      Seizures of the person include governmental detentions of persons (incl. arrests)
      
      1. 
         arrest = police take person into custody against her will for purposes of criminal prosecution or interrogation
         
   2. 
      Reasonableness of seizure of person depends on:
      
      1. 
         scope of the seizure
         
         1. 
            e.g. an arrest or merely an investigatory stop
            
      2. 
         strength of the suspicion prompting the seizure
         
         1. 
            e.g. arrest requires PC but investigatory detention can be based on reasonable suspicion
            
   3. 
      Seizure of person occurs only when reasonable person would believe that she is not free to leave.
      
      1. 
         Requires a physical application of force by officer or a submission to the officer’s show of force.
         

7. 
   Requirements to be a “search” under 4^th Amend.
   
   1. 
      If 4^th Amend. applies:
      
      1. 
         creates a right
         
      2. 
         creates a cause of action in civil cases
         
      3. 
         requires certain things in compliance
         
         1. 
            i.e. warrant required from judge
            
   2. 
      Exclusionary rule is primary remedy
      
      1. 
         but often there is no remedy - e.g. if police pulls over car and does illegal search but finds nothing, driver cannot sue
         
   3. 
      Not covered by 4^th Amend ö warrant not needed and govt wins
      
      1. 
         no warrant b/c don’t need to comply w/ 4^th Amend. requirements
         
      2. 
         Examples – Not covered by 4^th
         
         1. 
            wired informant
            
         2. 
            pen register
            
         3. 
            location beepers
            
         4. 
            dogs
            
         5. 
            physical appearance
            
         6. 
            open field
            
         7. 
            garbage
            
         8. 
            camera
            
   4. 
      Covered by 4^th Amend ö govt loses
      
      1. 
         Examples – Covered by 4th:
         
         1. 
            wiretapping
            
         2. 
            search house
            
         3. 
            search curtilage
            
         4. 
            thermal imaging
            
         5. 
            luggage squeeze
            
         6. 
            unusual aerial
            

8. 
   Search and Seizure – Analysis: (evidentiary S&S, not arrest)
   
   1. 
      Does D have a 4^th Amend. right?
      
      1. 
         Was there governmental conduct?
         
      2. 
         Did D have a reasonable expectation of privacy?
         
   2. 
      If so, did police have a valid warrant?
      
   3. 
      If police did not have valid warrant, did they make a valid warrantless search and seizure?
      

2. 
   Fourth Amend.’s applicability to the States
   
   1. 
      4^th Amend. prohibition against unreasonable searches and seizures applies to states.
      
      1. 
         Wolf v. Colorado (USSC 1949) – 4^th Amend. protection against unreasonable search and seizure is applicable in state court criminal proceedings. 14^th Amend. prohibits arbitrary searches and seizures by state and local police.
         
         1. 
            4^th Amend. applies to all govt searches – federal, state, local. If violated, at least some of the evidence obtained will be excluded at trial.
            
         2. 
            But due process does not require state courts to exclude evidence obtained in violation of 14^th Amend. – no exclusionary rule applicable to states. [BUT exclusionary rule now applies to states, Mapp v. Ohio]
            

3. 
   Scope of 4^th Amendment
   
   1. 
      Search = governmental intrusion into an area where a person has a reasonable and justifiable expectation of privacy.
      
   2. 
      Seizure = exercise of control by the govt over a person or thing
      
   3. 
      Reasonableness = depends on circumstances
      
      1. 
         Ex: certain searches and seizures are considered to be reasonable only if the govt first gets warrant authorizing the action, while other searches and seizures are reasonable without a warrant.
         
   4. 
      Applicability of 4^th Amend.
      
      1. 
         When covered by 4^th Amend, 4^th Amend protections apply ö search warrant or reasonable search required
         
      2. 
         When NOT covered by 4^th ö no 4^th Amend. protections ö warrant or reasonable search NOT required
         

4. 
   What is a Search?
   
   1. 
      Search = Governmental intrusion into an area where a person has a reasonable and justifiable expectation of privacy. [Katz – Harlan concurrence]
      
   2. 
      General Approach: Katz
      
      1. 
         Searches conducted outside the judicial process, without prior approval by judge or magistrate (i.e. no search warrant) are per se unreasonable under 4^th Amend, subject only to a few specifically established well-delineated exceptions. [Stewart holding]
         
      2. 
         CURRENT TEST = Reasonable expectation of privacy ** [Harlan’s concurrence]
         
         1. 
            2-prong test to determine whether police conduct constitutes a search:
            
            1. 
               person exhibited an actual expectation of privacy (subjective) , and
               
            2. 
               expectation that society is prepared to recognize as “reasonable” (objective)
               
         2. 
            Result:
            
            1. 
               If covered by Katz ö search warrant required
               
            2. 
               If NOT covered by Katz ö search warrant NOT required
               
      3. 
         Katz Facts: D charged w/ transmitting bets over telephone. FBI placed listening device outside the phone booth and recorded only D’s side of his phone conversations.
         
      4. 
         Holding: Wiretapped recordings of public phone booth conversations of D were inadmissible in evidence in absence of a warrant authorizing the surveillance. Electronic surveillance of the conversations w/ others constituted a “search” and was thus regulated by 4^th Amend. Absence of physical intrusion into the booth did not justify using electronic devices in listening to and recording’s D’s words, thereby violating the privacy on which he justifiably relied while using the booth in those circumstances. 4^th Amend. claim cannot be turned into a general constitutional right of privacy claim.
         

3. 
   Electronic Surveillance
   
   1. 
      Katz – 4^th Amend. restrictions apply to electronic surveillance, but see exceptions below
      
   2. 
      Wiretapping public phone booth ö covered by 4^th Amend. (its’ a 4^th Amend. search) – Katz
      

3. 
   False Friends ö NOT covered by 4^th Amend.
   
   1. 
      No reasonable expectation of privacy.
      
   2. 
      Hoffa – Hoffa had conversations w/ associate Partin, said incriminating things about himself, and Partin was going to testify against Hoffa.
      
      1. 
         Held: If you say something to someone, you risk that they will tell someone what you said. No 4^th Amend. protection for conversations between yourself and another person.
         

4. 
   Wired Informant ö NOT covered by 4^th Amend.
   
   1. 
      Recorded conversations not constitutionally protected, can be used against D at trial
      
   2. 
      No reasonable expectation of privacy.
      
   3. 
      White (1971) – Govt used informant “wired” with a concealed transmitter to record conversations between him and D.
      
      1. 
         Held: 4^th Amend. does not bar from evidence the testimony of governmental agents who related certain conversations which had occurred between D and wired informant. Electronic surveillance on govt informant recording conversations w/ D, without judicial approval, is not protected under 4^th. Essentially followed Hoffa but put in terms of Katz
         
   4. 
      Examples of conversation between undercover agent and defendant:
      
      1. 
         what agent reports from his memory – not covered by Hoffa or White
         
      2. 
         agent’s notes – no 4^th Amend. issue
         
      3. 
         agent has tape recording – no 4^th Amend. issue
         
      4. 
         agent has radio/tape recorder in pocket – no 4^th Amend issue
         
      5. 
         agent brings in tape recorder to house, then leaves, D’s conversations are recorded – covered by 4^th Amend.
         

5. 
   Pen Register ö NOT covered by 4^th Amend.
   
   1. 
      No reasonable expectation of privacy in phone numbers dialed.
      
   2. 
      Smith (1979) – Pen register installed by telephone company to record numbers dialed from telephone at D’s home.
      
      1. 
         Held: The installation and use of a pen register does not constitute a “search” within the meaning of the 4^th Amend, thus no warrant was required. Petitioner had no actual expectation of privacy in the phone numbers he dialed, and even if he did, his expectation was not legitimate.
         

6. 
   Beeper (location tracking device) ö generally NOT covered by 4^th Amend.
   
   1. 
      No reasonable expectation of privacy when tracking movements in public.
      
   2. 
      Knotts (1983) – Without warrant, radio transmitter that emitted periodic signals to police was placed in drum purchased by D, and police monitored suspect’s movements from the purchase place along public roads to cabin of co-D Knotts. Held: This surveillance did not constitute a 4^th Amend. search. There was no indication that beeper was used in any way to reveal information as to the movement of the drum w/in the cabin or in any way that would not have been visible to the naked eye from outside the cabin.
      
   3. 
      Exception: Beeper tracking w/in private residence IS covered by 4^th
      
      1. 
         There is a reasonable expectation of privacy while inside one’s home
         
      2. 
         Karo (1984) – Tracking device that monitored suspect’s movements on private roads and in private home. Warrantless monitoring of beeper in private residence, a location not open to visual surveillance, violates 4^th Amend. rights of those who have justifiable interest in privacy of the residence.
         

4. 
   Sniffing Dogs ö NOT covered by 4^th Amend.
   
   1. 
      Place (1983) – Dog sniff that discloses only the presence or absence of narcotics does not constitute a search within the meaning of the 4^th Amend.
      
   2. 
      Dog sniffs not covered by 4^th Amend., thus not a search and govt can use them to sniff for things like narcotics. Not very intrusive, very limited kind of search, only looking for odors. The fact that its contraband does not limit the 4^th Amend.
      

5. 
   Physical Attributes ö NOT covered by 4^th Amend.
   
   1. 
      Includes appearance, voice, fingerprints, smell, appearance
      
   2. 
      Exceptions – covered by 4th
      
      1. 
         fingernail scrapings
         
      2. 
         blood and urine tests
         
   3. 
      Hair sample – Sup. Ct. not yet resolved that question
      
   4. 
      Fingerprints – not protected by 4^th, but you must be arrested first, which is protected by 4^th
      
6. 
   Open Fields, Curtilege, Aerial
   
   1. 
      Open Fields ö NOT covered by 4^th
      
      1. 
         Open fields = any unoccupied or undeveloped area outside of the curtilage of a home; area more remote from the home and curtilage.
         
      2. 
         Oliver (1984) – “No trespassing sign” on fenced area around barn; police came and walked around the area looking for marijuana.
         
         1. 
            Held: No 4^th Amend. violation b/c fenced in area considered “open field” in which there is no reasonable expectation of privacy. Entry of open field does not implicate 4^th Amend.; open fields not protected by 4^th Amend.
            

2. 
   Curtilage ö covered by 4^th
   
   1. 
      Curtilage = area immediately surrounding the home. Considered part of the home for 4^th Amend. purposes. Person has reasonable expectation of privacy in this area.
      
   2. 
      Boyd (1886) – Curtilage is area to which extends the intimate activity associated w/ the sanctity of a man’s home and the privacies of life.
      
   3. 
      Dunn (1987) – Centrally relevant consideration: Whether the area is so intimately tied to the home itself that it should be placed under the home’s umbrella of 4^th Amend. protection.
      
      1. 
         CURRENT TEST to determine whether area is curtilage:
         
         1. 
            proximity of the area claimed to be curtilage to the home;
            
         2. 
            whether the area is included w/in an enclosure surrounding the home;
            
         3. 
            the nature of the uses to which the area is put (where search happened)
            
         4. 
            steps taken by the resident to protect the area from observation by people passing by.
            

3. 
   Aerial Surveillance of Curtilage
   
   1. 
      GR = What you can see from the air is NOT protected by 4^th Amend.
      
      1. 
         NO reasonable expectation of privacy
         
      2. 
         If flying inside of normal, legal airspace over the home/area
         
      3. 
         Includes looking at curtilage and open fields from the air (w/in normal flight area)
         
   2. 
      Undecided: what one sees when flying outside of normal flight area
      
      1. 
         No formal USSC decision on issue but some cases indicate there is reasonable expectation of privacy when helicopter flies over home while flying outside of the normal flight area
         
   3. 
      Ciraolo (1986) – Aerial surveillance from airplane into D’s backyard (curtilage) which found marijuana plants was not a search and fell outside 4^th Amend. protection. 4^th Amend. protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares. 4^th Amend. does not require police traveling in the public airways at this altitude to obtain a warrant in order to observe what is visible to the naked eye. What a person knowingly exposes to the public, even in his own home or office, is not a subject of 4^th Amend. protection (Katz).
      
   4. 
      Riley (1989) – No 4^th Amend. violation when police found illegal activity of D growing something in his greenhouse w/ aerial inspection, when the sides and roof of the greenhouse were left partially open to the public eye.
      

7. 
   Garbage left for pickup ö NOT protected by 4^th
   
   1. 
      Greenwood (1988) – Person does not have a reasonable expectation of privacy in garbage left outside the curtilage of a home for trash removal – not protected by 4^th Amend. Exposing it to the public takes it out of 4^th Amend. protection.
      

8. 
   Abandoned property ö NOT protected by 4^th
   
   1. 
      Abandoned property = property that has been relinquished by its owner
      

9. 
   Camera ö NOT protected by 4^th
   
   1. 
      Dow (1986) – Use of aerial mapping camera not covered by 4^th b/c area photographed was not an area immediately adjacent to a private home, where privacy expectations are most heightened.
      

10. 
    Thermal Imaging Device ö Violates 4^th Amend.
    
    1. 
       Thermal imaging device aimed at private home from public street = 4^th Amend. search
       
    2. 
       Kyllo (2001) – Cops suspected D of growing marijuana so they used a thermal imaging device externally to detect heat inside his private home from public street (more heat indicates indoor lamps necessary to grow the drugs).
       
       1. 
          Held: Use of thermal imaging device aimed at private home from a public street to detect relative amounts of heat w/in the home constitutes a “search” within the meaning of 4^th Amend. that violates person’s reasonable expectation of privacy.
          
       2. 
          TEST – 4^th Amend. Search when:
          
          1. 
             obtained by sense-enhancing technology
             
          2. 
             any information regarding the interior of the home
             
          3. 
             that could not otherwise have been obtained without a physical intrusion into a constitutionally protected area
             
          4. 
             at least where the technology in question is not in general public use.
             

11. 
    Luggage Squeeze ö Violates 4^th Amend.
    
    1. 
       Bond (2000) – Govt authorities’ pre-consent squeezing of passengers’ luggage on bus (after which they found drugs in D’s bag) was an unconstitutional “search” under 4^th Am.
       

12. 
    Cell Phones and GPS ö undecided
    
    1. 
       No USSC decision on cell phone recording-type devices
       
    2. 
       Most lower courts hold it is covered by 4^th Amend.
       

5. 
   What is a Seizure?
   
   1. 
      Seizure = exercise of control by the govt over a person or thing;
      
      1. 
         Liberty is interfered with to a substantial extent
         
      2. 
         Seizure of person = generally an arrest
         
      3. 
         Seizure of property = meaningful (or substantial) interference w/ an individual’s possessory interest in the property (Karo)
         
   2. 
      U.S. v. Karo (1984)
      
      1. 
         Beeper installed in a container of chemicals with the consent of the original owner and container is delivered to a buyer having no knowledge of the presence of the beeper. Issue: Does this constitute a seizure within the meaning of the 4^th Amend.?
         
      2. 
         Held: Actual placement of beeper into container did not violate any 4^th Amend. right. Transfer of the can with beeper to Karo was not a seizure. Seizure of property occurs when there is some meaningful interference with an individual’s possessory interests in that property. Here, no one’s possessory interest was interfered w/ in a meaningful way.
         
      3. 
         Dissent: Asserting dominion and control over the property–the power to use the property for its own purposes–is a seizure.
         

6. 
   Standing to Raise 4^th Amend.
   
   1. 
      Introduction
      
      1. 
         4^th Amend. is personal. [Katz]
         
         1. 
            Individual must have standing before he can bring a 4^th Amend. claim.
            
         2. 
            Only when your rights are violated do you have standing to bring 4^th Am. claim.
            
         3. 
            To have 4^th Amend. right, person must have reasonable expectation of privacy w/ respect to the place searched or item seized.
            
      2. 
         Jones (1960) – Anyone legitimately on premises where a search occurs may challenge its legality. D here had automatic standing b/c he had possession of the drugs. BUT overruled by Katz.
         
      3. 
         Alderman (1969) – Suppression of the product of a 4^th Amend. violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence. Rights assured by the 4^th Amend. are personal rights, which may be enforced by exclusion of evidence only at the instance of one whose own protection was infringed by the search and seizure.
         

2. 
   General Approach: Rakas
   
   1. 
      Person can complain about evidentiary search or seizure only if it violates his own reasonable expectation of privacy.
      
      1. 
         D must demonstrate that:
         
         1. 
            he personally has an expectation of privacy in the place searched, and
            
         2. 
            his expectation is reasonable
            
      2. 
         Person has legitimate expectation of privacy any time:
         
         1. 
            She owned or had a right to possession of the place searched [Rakas]
            
         2. 
            The place searched was in fact her home, whether or not she owned or had a right to possession of it [Carter]
            
         3. 
            She was an overnight guest of the owner of the place searched [Minn. v. Olson]
            

2. 
   Rakas (1978) – Ds were driving car that was not their own when police pulled them over, searched the car and found gun. Issue: Whether the challenged search and seizure violated the 4^th Amend. rights of a criminal D who seeks to exclude the evidence obtained from it. Do the passengers have standing to bring this 4^th Amend claim? Jones principle applied.
   
   1. 
      Held: Petitioners do not have standing to bring this claim. They asserted neither a property nor a possessory interest in the car, nor an interest in the property seized. Passengers made no showing that they had any legitimate expectation of privacy in the glove compartment or area under the seat of the car in which they were merely passengers. Katz is appropriate test for standing. Passengers have no standing. Car owner does have standing b/c he has reasonable expectation of privacy in his own home or car. 4^th Amend. is personal. Standing = Katz = personal 4^th Amend violation
      

3. 
   Apartments, Homes
   
   1. 
      Person has legitimate expectation of privacy if the place searched was in fact her home, whether or not she owned or had a right to possession of it. [Carter]
      
      1. 
         Home = property owned, leased, or rented by person
         
      2. 
         Search of Third-Party Premises
         
         1. 
            Standing does not exist merely b/c person will be harmed by introduction of evidence seized during an illegal search of a third person’s property.
            
         2. 
            Carter (1998) – Ds were guests at someone else’s apartment, went there to bag cocaine and were seen through window by police officer. Held: No 4^th Amend. violation b/c Ds did not have standing, only apartment tenant had standing. Ds, as temporary guests visiting apt. for brief business transaction, did not have a reasonable expectation of privacy while at the apt.
            
   2. 
      Person has legitimate expectation of privacy if she was an overnight guest of the owner of the place searched [Minn. v. Olson]
      
      1. 
         even if it’s just for one night
         

4. 
   Post-Rakas Cases
   
   1. 
      People lawfully on the premises – determined on case by case basis
      
      1. 
         Overnight guest has reasonable expectation of privacy [REOP]
         
      2. 
         Short-term visitor, i.e. for an afternoon or evening – no REOP
         
      3. 
         Visitor for commercial purposes (e.g. Carter) – less 4^th Amend. protection
         
      4. 
         Prior connection w/ property – some reasonable expectation of privacy
         
      5. 
         Control over the premises – may have REOP
         
         1. 
            e.g. owner left the house in your control for a period
            
   2. 
      Autos – Searches in cars
      
      1. 
         Less 4^th Amend. protection than homes
         
      2. 
         Car owner has standing even if he is not using car when it is searched
         
      3. 
         Car owner loans car to friend – friend has REOP
         
      4. 
         Passengers must establish REOP in area that was searched to get 4^th Am. protection
         
         1. 
            may have REOP when the car is being pulled over – passenger’s rights may be violated by car being pulled over
            
      5. 
         Real estate does not automatically confer 4^th Amend. protection
         
   3. 
      Electronic Surveillance
      
      1. 
         If govt hears your conversations via electronic surveillance in your home:
         
         1. 
            You have standing to contest the validity of your conversations being taken
            
   4. 
      ** NOTE: If you deny any interest in the property, you lose standing
      
      1. 
         e.g. if you deny that drugs are yours after they’re found in car and you get charged, you do not have standing to contest the validity of the search
         

7. 
   Consent to Search or Seizure
   
   1. 
      Introduction
      
      1. 
         4^th does not apply when there is:
         
         1. 
            no standing or
            
         2. 
            valid consent to search
            
      2. 
         Consent is one exception to warrant requirement
         
         1. 
            Most searches by police are consensual searches
            
      3. 
         Waiver of rights (as comparison)
         
         1. 
            Standard for determining Waiver: [Zerbst]
            
            1. 
               knowing (D is told about the right)
               
            2. 
               intelligent
               
            3. 
               voluntary (refers generally to coercion – D aware of his rights)
               
         2. 
            Party asserting the waiver of the right has burden of proof to show waiver was knowing and voluntary
            
      4. 
         Consent = must be voluntary and intelligent (Schneckloth)
         
         1. 
            knowledge of the right to withhold consent, while a factor to be considered, is not a prerequisite to establishing a voluntary and intelligent consent.
            
      5. 
         Scope of Consent
         
         1. 
            Scope of search limited by scope of consent
            
            1. 
               BUT consent extends to all areas to which a reasonable person under the circumstances would believe it extends.
               
         2. 
            Person consents to something within limits
            
            1. 
               can limit what the police ask to search
               
            2. 
               e.g. only allow them to search the living room but not the bedrooms
               
         3. 
            If police ask to search the house for drugs, they can search anywhere in the house where drugs could reasonably be found
            
            1. 
               this would be different if person consented to them searching house for dead body – this would limit search to larger spots where body could reasonably be hidden
               
         4. 
            Consent can be withdrawn at any time
            
         5. 
            Multiple searches
            
            1. 
               ex: wife calls police, says husband is dead and she took pills and needs help; police came, took her to hospital, searched and found dead husband and then searched again the entire house; court held the first search for the dead husband was valid b/c she consented by calling police and telling them to come over b/c husband dead; second search was invalid b/c wife’s acts did not amount to consent to this search
               
         6. 
            Must have capacity to consent
            

2. 
   Consent must be voluntary and intelligent (knowing not required)
   
   1. 
      Knowledge of the right to withhold consent, while a factor to be considered, is NOT a prerequisite to establishing a voluntary and intelligent consent.
      
   2. 
      Voluntariness is question of fact to be determined from all the circumstances.
      
   3. 
      Factors court will consider to determine if consent was voluntary:
      
      1. 
         police - actions, language, guns drawn or not, how many officers
         
      2. 
         characteristics of the person consenting - race, ethnicity, language, background, mental capacity etc.
         
      3. 
         physical setting where consent given, time of day - e.g. was it custodial situation - in police car or in their home
         
      4. 
         number of requests
         
      5. 
         D’s knowledge of a right to consent (not determinative)
         

4. 
   Schneckloth v. Bustamonte (1973) – Cops pulled car over b/c headlight out, car owner’s brother consent to a search of the car, and cops found under seat stolen checks belonging to Bustamonte, another passenger in the car. (Standing not an issue here b/c Rakas not yet decided; if Rakas had been decided, Bustamonte probably would not have had standing). Issue: What must the prosecution prove to demonstrate that a consent was voluntarily given?
   
   1. 
      Held: When the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, 4^th and 14^th Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from all the circumstances, and while the subject’s knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.
      

3. 
   Third Party Consent
   
   1. 
      In some circumstances, one person can consent to a search of another person’s property
      
   2. 
      Co-occupant can consent to search in absence of other co-occupant if he has common use and control over premises
      
      1. 
         Matlock (1974) – 4^th Amend. recognizes valid warrantless entry and search of premises when police obtain the voluntary consent of an occupant who shares authority over the area in common w/ a co-occupant who later objects to the use of evidence so obtained. It was reasonable to recognize that co-occupant has a reasonable expectation of privacy in the premises. Valid search where one co-occupant consents to search; second occupant not present and thus had no ability to give consent
         

3. 
   Person possessing common authority over premises can authorize consent – Randolph
   

4. 
   Two parties present, one party objects and one consents to search ö objection is valid and the search is invalid against the objecting party – Randolph
   
   1. 
      Evidence seized can be used against consenting party but not used against objecting party
      
   2. 
      Georgia v. Randolph (2006) – Estranged wife back at house w/ husband, police are called, are accusing each other of drug use, wife consents to search and husband does not; police search on wife’s consent and find drugs.
      
      1. 
         Held: A warrantless entry and search of premises when police obtain the voluntary consent of one occupant when the other, who later seeks to suppress the evidence, is present at the scene and expressly refuses to consent is invalid under the 4^th Amend. Warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him (the refusing resident) on the basis of consent given to the police by another resident. Police must obtain warrant or get consent from both occupants, or consent from one when the other occupant is not present. Wife’s consent did not allow the police to search over the husband’s refusal of consent.
         

4. 
   Apparent Consent
   
   1. 
      Right to consent is personal and can only be waived by person who has the right.
      
   2. 
      Any person with an apparent equal right to use or occupy the property may consent to a search – Frazier v. Cupp and Matlock
      
      1. 
         any evidence found may be used against the other owners or occupants
         

3. 
   Warrantless entry into home valid if officers reasonable believed that consenting party had authority to consent – Rodriguez
   
   1. 
      Search valid even if it turns out that the person consenting to the search did not actually have such right, as long as the police reasonably believed that the person had authority to consent
      
   2. 
      Objective test to determine reasonableness: whether reasonable person would believe there was authority to consent to that search.
      
   3. 
      Rodriguez (1990) – Domestic assault case; she called police to help her get stuff from boyfriend’s apartment – called it “our” apartment; police came and asked if they could search it, she said yes; police found drugs and arrested D; D challenged introduction of evidence they found there against him.
      
      1. 
         Held: Fischer did not have joint access or control for most purposes w/ respect to the apartment that was searched, therefore she did not have the common authority to consent to the search. BUT the warrantless entry into Rodriquez’s home was valid if the officers reasonably believed that Fischer had authority to consent. “Reasonableness” of search does not demand that govt be factually correct in its assessment that that is what a search will produce. It was a valid search b/c it was reasonable. Pro-law enforcement decision. All police must do is act like reasonably prudent person would act.
         

8. 
   Probable Cause and the 4^th Amendment
   
   1. 
      Introduction
      
      1. 
         GR = warrants must be based on probable cause
         
         1. 
            Case law extended probable cause to reasonableness
            
         2. 
            Probable cause thus applies to warrants and reasonable searches
            
         3. 
            Probable cause based on totality of circumstances – Gates (majority)
            
      2. 
         Probable cause is standard to be met before there can be a valid search or seizure
         
         1. 
            compromise between law enforcement and citizens’ privacy
            

3. 
   PROBABLE CAUSE TEST: Would a person of reasonable caution believe:
   
   1. 
      Arrest:
      
      1. 
         that crime was committed
         
      2. 
         by the arrestee
         
   2. 
      Search:
      
      1. 
         that item to be seized is at
         
      2. 
         the place to be searched
         
   3. 
      ** Objective test – does not depend on subjectiveness of officer
      

4. 
   What does probable cause mean:
   
   1. 
      How likely that crime was committed
      
   2. 
      Less than beyond a reasonable doubt
      
   3. 
      More than “reasonable suspicion” [Terry]
      
   4. 
      Gates – fair probability
      
5. 
   How courts describe probable cause:
   
   1. 
      Less then beyond a reasonable doubt
      
   2. 
      Less than clear and convincing and less than even a preponderance
      
   3. 
      Known facts based on trustworthy information to believe that this defendant had committed the crime
      
      1. 
         Search: known facts based on trustworthy information that would lead person of reasonable caution to believe that evidence is where you claim it to be
         
   4. 
      Some call it ‘reasonable cause’
      
      1. 
         ** Note: “reasonable suspicion” is a different concept
         

6. 
   Warrant Procedure:
   
   1. 
      police will apply for warrant (police is the affiant)
      
   2. 
      application includes:
      
      1. 
         affidavit (sworn statement) - could be from informant
         
      2. 
         other written information
         
   3. 
      judge decides if application adds up to probable cause, if so will issue warrant
      
   4. 
      motion to suppress
      
   5. 
      ** Magistrate (who signs warrant) – any judicial officer and sometimes court clerk – does not have to be sworn in by judge
      

2. 
   Probable Cause and Govt Informants
   

1. 
   Aguilar–Spinelli Test – MINORITY TEST
   
   1. 
      If govt uses confidential information to get the information for the warrant, to establish probable cause, it needs:
      
      1. 
         Basis of knowledge of informant
         
         1. 
            search warrant must set forth underlying circumstances necessary to enable judge to independently judge the validity of the informant’s conclusion about the illegal activity
            
      2. 
         Veracity
         
         1. 
            informant must be reliable enough to provide probable cause
            
         2. 
            officers must show that informant is credible or his information reliable
            
      3. 
         Corroborating circumstances
         

2. 
   ** Note: Last prong (corroborating circumstances) added by Spinelli. Some states still use the old 2-prong Aguilar test,
   
3. 
   Aguilar (1964) – Confidential informant, affidavit by police recounting what informant told him: “I have received reliable information from credible person that various drug are at location.” Judge issued warrant based on this. Sup. Ct. reversed b/c you need more than reliable informant. Aguilar presented problems, too exacting - then Spinelli.
   
4. 
   Spinelli (1969) – Affidavit for warrant application stated that FBI knew D was a gambler, details of tracking his movement to different places, and that FBI was informed by “confidential reliable informant that D is operating a handbook and accepting wagers and disseminating wagering information by means of telephones which have been assigned these numbers” (FBI checked w/ phone company, those numbers were listed under name of Grace Hagen, not D’s name).
   
   1. 
      Held: Where the informer’s tip is a necessary element in a finding of probable cause, its proper weight must be determined by a more precise analysis. Just a simple assertion of police suspicion is not itself a sufficient basis for a judge’s finding of probable cause, and it cannot be used to give additional weight to allegations that would otherwise be insufficient. Here, the veracity prong failed, it’s not enough to just say that informant is reliable. This more of anti-law enforcement decision (Sup. Ct. more conservative here); law enforcement not happy. By 1983, Court leaning more towards pro-law enforcement.
      

2. 
   Totality of Circumstances – MAJORITY TEST
   
   1. 
      Judge makes a practical, common-sense decision whether,
      
      1. 
         given all circumstances set forth in the affidavit,
         
      2. 
         including the veracity and basis of knowledge of persons supplying hearsay information (informant),
         
      3. 
         there is a fair probability that contraband or evidence of a crime will be found in a particular place.
         
      4. 
         includes corroboration of informant’s information
         
   2. 
      Affidavit does not need any particular fact about informer
      
      1. 
         must include enough information to allow the magistrate to make a common sense evaluation of probable cause
         
   3. 
      Gates (1983) – Anonymous letter from informant detailing Gates’ involvement in drug trafficking. Judge issued search warrant for house and car, found drugs and other contraband in both.
      
      1. 
         Held: Abandoned Aguilar-Spinelli “two-pronged” test. Court wants to encourage warrants, not discourage them, make them easier to get; pro-law enforcement decision. Court says this test too high of a standard, too rigid to get warrant. Instead, must use totality of circumstances approach. Test includes corroboration of informant’s information – points more to his reliability.
         

3. 
   While Gates’ Totality of circumstances test is the new standard and majority rule, many states still use Aguilar-Spinelli test (minority rule)
   
   1. 
      these states think Gates takes away the rights of the accused, that Aguilar–Spinelli test gives more rights to the accused.
      

4. 
   Govt Informants
   
   1. 
      Informant or person who gives information to police officer applying for the warrant:
      
      1. 
         If informant is police officer ö courts say he is per se reliable and credible (adequate for probable cause)
         
      2. 
         If information comes from victim or actual witness ö reliable and credible
         

9. 
   Warrants and the 4^th Amendment
   
   1. 
      Arrest Warrants
      
      1. 
         Introduction
         
         1. 
            Arrests must be reasonable to be valid under 4^th Amend.
            
            1. 
               Reasonableness of seizure of person depends on:
               
               1. 
                  scope of the seizure
                  
                  1. 
                     e.g. an arrest or merely an investigatory stop
                     
               2. 
                  strength of the suspicion prompting the seizure
                  
                  1. 
                     e.g. arrest requires PC but investigatory detention can be based on reasonable suspicion
                     

2. 
   WARRANT REQUIREMENTS
   
   1. 
      Issued by neutral and detached magistrate
      
   2. 
      Based on probable cause established from facts submitted to magistrate by govt agent upon oath or affirmation (affidavit)
      
   3. 
      Particularly describe the place to be searched and items to be seized (application)
      

3. 
   Warrant needed for both arrest and search
   
   1. 
      If no warrant, the only standard is reasonableness
      
   2. 
      Warrant ö always need probable cause
      
   3. 
      Historically, at common law, warrant not necessary if there was probable cause – different now
      

2. 
   Arrest in Public Place
   
   1. 
      Warrant not necessary öonly probable cause needed to arrest in public
      
      1. 
         Watson (1976) – Upheld a warrantless “midday public arrest.”
         

3. 
   Arrest in Home – Payton
   
   1. 
      Arrest warrant based on probable cause implicitly carries with it the limited authority to enter D’s home where there is reason to believe the suspect is within.
      
   2. 
      Payton Rule: Arrest in home = warrant required
      
   3. 
      Exceptions where warrant NOT needed for arrest in home (exceptions to Payton)
      
      1. 
         Exigent circumstances (emergency)
         
      2. 
         Hot pursuit
         
      3. 
         Imminent destruction of evidence
         
         1. 
            police have reason to believe that evidence will be destroyed if they don’t get in quickly enough
            
      4. 
         Prevent escape
         
      5. 
         Risk of harm or danger
         
         1. 
            waiting would increase the danger
            
      6. 
         Police otherwise on premises
         
         1. 
            are in the house already, they can act and make an arrest (arrest must be based on probable cause)
            
      7. 
         Doorway to home ö considered more public than private, you’re not invading the house
         
         1. 
            if you’re outside of the doorway = public place
            
         2. 
            if you’re inside the doorway = private home
            
   4. 
      In the above situations, it’s viewed as reasonable under the circumstances to arrest w/o warrant.
      

1. 
   Payton (1980) – After intensive investigation, police had enough evidence to establish probable cause that D murdered V. Went to D’s home to arrest w/ no warrant. No response to knock on door, so forced entry into home; apt. empty; gun in plain view seized. D wants to suppress evidence from apt. Issue: Were the police lawfully in his house w/ probable cause? D challenging state laws that allowed police to enter private home w/o warrant and w/ force if necessary, to make routine felony arrest.
   
   1. 
      Held: Police were illegally in his house, warrant was required to enter the house for the arrest; no exigent circumstances here. Thus could not use anything against him that they found in his house.
      
   2. 
      Absent exigent circumstances, the Fourth Amendment applies equally to seizures of property and seizures of persons in that person’s house without a warrant. An entry to arrest and entry to search for and seize property implicate the same interest in preserving the privacy and the sanctity of the home, and justify the same level of constitutional protection.
      

4. 
   Arrest in Third Person’s Residence ö Search warrant required
   
   1. 
      In the absence of exigent circumstances, an arrest warrant is inadequate to protect the 4^th Amend. interests of persons not named in the warrant when their homes are searched without their consent.
      
      1. 
         Police must have search warrant for home of 3^rd party – Steagald
         
      2. 
         this protects privacy interests of the 3^rd party
         

5. 
   Exception to In-Home Warrant Requirement: Exigency
   
   1. 
      Minnesota v. Olson (1990) – Police made warrantless arrest of murder accomplice, claimed it was based on exigent circumstances.
      
      1. 
         Rule: A warrantless intrusion may be justified by hot pursuit of a fleeing felon, or imminent destruction of evidence, or the need to prevent a suspect’s escape, or the risk of danger to the police or to other persons inside or outside the dwelling.
         
      2. 
         No exigent circumstances here. Arrestee was the accomplice to a murder who drove get-away car, not the murderer himself; police had already recovered murder weapon; police knew accomplice was w/ 2 women and no suggestion of danger to them; it was 3 p.m. on Sunday, suspect was going nowhere; house surrounded by cops, he would be immediately arrest.
         

6. 
   Gerstein Hearing
   
   1. 
      Required in every state
      
   2. 
      4th Amend. requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest – Gerstein
      
      1. 
         D has 4^th Amend. right to be released from detention if there is no PC to hold him
         
      2. 
         Thus D has right to a determination of PC
         
   3. 
      Hearing held after arrest but before trial
      
      1. 
         to determine if PC for detention exists
         
      2. 
         informal, ex parte, nonadversarial proceeding
         
      3. 
         Hearing must occur without unreasonable delay
         
      4. 
         Determines the legitimacy of taking D’s liberty temporarily
         

4. 
   Gerstein hearing different from initial appearance (federal) or arraignment
   
   1. 
      the latter are administrative hearings to make sure D has lawyer, knows charges, deal w/ bail etc.
      
   2. 
      Some states combine the 2 hearings into 1 for Gerstein issue and administrative issues (arraignment)
      

7. 
   Executing Warrant: Force
   
   1. 
      When police have authority to make arrest, they can use reasonable force to affect the arrest.
      
      1. 
         Even when in that person’s home.
         
      2. 
         Reasonable force = non-deadly force
         
   2. 
      Unreasonable force violates 4^th Amend.
      
      1. 
         Deadly force to stop fleeing felon ö unreasonable unless there is some real indication that he is dangerous.
         
         1. 
            Tennessee v. Garner – Police officer may not use deadly force to prevent the escape of a fleeing felon, unless she has probably cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, if she is not immediately taken into custody.
            

2. 
   Search Warrants
   
   1. 
      Introduction
      
      1. 
         General rule = search warrant required
         
         1. 
            Searches and seizures inside a home without a warrant are presumptively unreasonable
            
         2. 
            Searches and seizures must be reasonable to be valid under 4^th Amend.
            
            1. 
               Reasonableness usually means that police must get a warrant before conducting search
               
            2. 
               But there are exceptions where warrant is not required
               

2. 
   Exceptions where warrant not required:
   
   1. 
      No 4^th Amend. violation (no standing) – Katz
      
   2. 
      Consent
      
      1. 
         Schneckloth v. Bustamonte (1973)
         
   3. 
      Exigent circumstances, hot pursuit
      
      1. 
         Warden v. Hayden (1967)
         
   4. 
      Search incident to lawful arrest
      
      1. 
         Chimel search (person–wingspan)
         
      2. 
         Maryland v. Buie (protective sweep)
         
      3. 
         Belton search (car–passenger compartment)
         
   5. 
      Automobile exception
      
      1. 
         Carroll–Chambers–Carney
         
   6. 
      Plain view and touch
      
      1. 
         Coolidge (1971) and Arizona v. Hicks (1987)
         
   7. 
      Stop and frisk
      
      1. 
         Terry v. Ohio (1968)
         

2. 
   Elements of a Valid Search Warrant
   
   1. 
      Oath or affirmation
      
   2. 
      Based on probable cause
      
   3. 
      Issued by neutral and detached magistrate
      
   4. 
      Particularity
      

3. 
   Detail: Elements of a Valid Search Warrant
   
   1. 
      Oath or affirmation
      
      1. 
         affidavit and application
         
         1. 
            affidavit could be signed by same person signing the application – must be sworn/under oath
            
      2. 
         can be done telephonically
         
   2. 
      Based on probable cause
      
      1. 
         established from facts submitted to magistrate by govt agent upon oath or affirmation
         
   3. 
      Issued by neutral and detached magistrate
      
      1. 
         magistrate cannot be involved in the search himself – Lo-Ji Sales v. NY
         
      2. 
         magistrate cannot just ‘rubber stamp’ warrant – i.e. he doesn’t read it, just signs it, or only glances at it for a minute before signing
         
   4. 
      

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