Criminal Procedure Outline PDF

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WHAT is a 4A Search? Foundation = Katz v. US: Reasonable and legitimate expectation of privacy that society is willing to recognize OR law enforcement intruded upon a constitutionally protected area to conduct surveillance a. Case law looks to: i. Technology is in common use ii. Sense replacing v. e...

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WHAT is a 4A Search? 1. Foundation = Katz v. US: Reasonable and legitimate expectation of privacy that society is willing to recognize OR law enforcement intruded upon a constitutionally protected area to conduct surveillance a. Case law looks to: i. Technology is in common use ii. Sense replacing v. enhancing iii. what/where is being surveilled: without technology, would the info be able to be gathered without intrusion into constitutionally protected space iv. Nature and scope (mosaic or pinpoint?) 2. Trespass doctrine: a. US v. Jones: GPS placed on vehicle reaffirms trespass is violative of Katz. b. Open field v. Curtilage i. Oliver “Open fields are not the setting for intimate activities that the 4A protects. ii. Dunn factors 1. Proximity 2. fencing/enclosure “part and parcel to the home” 3. Nature of the area’s use 4. Protection from observation (covers, privacy fences, etc) iii. US v. Jardines: Police physically intruded onto defendant’s porch with K9. Area within curtilage therefore search was violative. iv. Aerial surveillance 1. Ciarolo: 1000 feet = public vantage point where police have right to be and activity is clearly visible. 2. FL v. Riley: 400ft.“Knowingly exposed to public.” Anyone could have flown helo. v. Plain Touch/Feel/Smell (police “clearly cannot be required to ignore the contraband” Michigan v. Long) 1. Bond: Manipulation = bad. Plain touch = NOT search. Reasonable person standard in handling baggage. (See also: Terry frisks) (See also: Dickerson) 2. Angelo: Plain (human) smell: must be immediately apparent 3. Greenwood: Garbage is open to public inspection, not a 4A search. c. Technology and Records i. Kyllo: Thermal imager. Sense enhancing vs. Sense replacing. 4A search if: 1. Whether info obtained could not otherwise have been obtained without physical intrusion into constitutionally protected area. 2. Is the technology in use with general public 3. Surveillance = Search when: info obtained could not otherwise have been obtained without physical intrusion into a constitutionally protected area and technology in question is not in general public use ii. Dow Chemical: Sense enhancing. Open to public view. (Not curtilage) iii. Illinois v. Caballes: K9 Binary Search = not 4A. Binary search discloses only the presence or absence of contraband. Contrast Kyllo thermal imager. No expectation of privacy in contraband,. iv. Location Tracking: 1. Look to time of tracking and level of info obtained 2. Knotts: radio transmitter on chemicals for short time following. (but Karo prohibits continued tracking within the home) 3. US v. Jones: GPS provides “mosaic of movement” over LONG time violating Katz reasonable expectation of privacy. (also trespass) 1

a. Mosaic: Right to privacy: Mosaic can piece together broad movements to reveal the intimate activities of a person b. 1 trip on public road is not a search (see Knotts) b/c police could have followed. But Round-the-clock long-term surveillance is 4A. 4. Third Party Sharing: If Individual knowingly shares info with 3rd party, gov’t can retrieve that info from 3rd party w/o implicating 4A a. Carpenter: CSL: All encompassing, long term (5 year backwards), Future ability to track more intimate movements i. Presumptively unreasonable because it goes back in time before person was even a suspect. b. Smith v. Maryland: Pen register (distinguish destination v. content of message is relevant for EMAIL): i. NO physical intrusion ii. Only phone numbers iii. Provided to 3rd party (phone company) by suspect (no Katz in voluntarily exposed info) c. Warshak: Content of email = private. Address = public (like US Mail.) d. Carpenter and Smith factors i. How is data collected (active v. passive) ii. Nature of data (how much intimate data) iii. How is it put together, how extensive, how far back? e. Hoffa: 4A does not protect wrongdoer’s misplaced belief that a person he voluntarily confides in will not reveal the info. (voluntary exposure) f. Miller: Bank records: i. Commercial, Not personal ii. Open to review by gov’t (regulatory) iii. Info knowingly exposed to stream of commerce

What is a Seizure of Property? 1. Seizure interferes meaningfully with an individual’s possessory interest with that property. (Hicks) a. To seize without warrant, must be immediately apparent that it is evidence, contraband, or fruits of crime. (But there are other exceptions to the warrant requirement See below) b. Seizure must be reasonable 2. Like searches, must be reasonable under 4A. More intrusive = more scrutiny 3. AZ v. Hicks: legal entry for gun. Ofc sees stereo and wonders if stolen. Search can exist w/o Seizure a. Part 1: recording S/N is NOT interference with possessory interest b. Part 2: moving the item to reveal concealed portion IS a SEARCH (b/c intrudes reasonable expectation of privacy) but is NOT a seizure. 4. Texas v. Brown: Seizure of property in plain view is presumptively reasonable if PC to associate property with criminal activity. (Police saw balloon & other paraph. During traffic stop. Don’t need absolute certainty, to know...PC is sufficent to know plain view) 5. Jacobsen: Fedex contacts DEA to field test. Seizure can exist w/o Search Balance nature and quality of intrusion on individual 4A interest VS importance of gov’t interest alleged to justify intrusion. a. Search? NO Field test of small amount of substance is NOT a search (binary test) b. Seizure? YES DEA exercised dominion and control over package (minimally intrusive means the seizure was reasonable based on high likelihood of contraband. Low threshold) 6. Hypo Pg. 159: Copying computer data is not a seizure b/c does not interfere with possessory interest. (See Hicks) 2

7. Reasonableness of Seizure? a. Initial seizure i. In absence of warrant, must be immediately apparent (immediately ascertainable) that it is contraband, evidence, fruits or instrumentalities of crime. Immediately apparent: high likelihood b. Duration and extent c. US v. Place: Airport stop for CDS. NO argument about Reasonable suspicion (See Terry) i. 90 minutes = too long ii. K9 scan = binary search (but should have been done @ stop, not alternate location) iii. Police taking possession of bag interfered with possessory interest of owner (was NOT immediately ascertainable as contraband, etc). iv. Embarrassment & inconvenience v. Needless delay (was not told where baggage was going, how to retrieve) vi. Factors to consider for a temporary seizure based upon reasonable suspicion: 1. Length of detention 2. Diligence of police 3. Did police minimize disruption

When is a Person Seized? 1. See also: Terry v. Ohio: When officer, by means of physical force or show of authority that has in some way restrained the liberty of a citizen. Individual is seized when reasonable person in suspect’s position would believe he/she is not free to leave or otherwise terminate the encounter. Seizure of person requires RAS (See Terry) 2. US v. Drayton: Greyhound bus a. Not a seizure of persons because reasonable person would believe they were free to leave or otherwise terminate the encounter. b. No force or show of force c. No intimidating movement d. No Brandishing of weapons e. No blocking exits f. No Threat or Command or authoritarian tone of voice 3. CA v. Hodari D. Running from police is a factor towards PC. Running is not seizure--requires physical restraint. a. Seizure requires: physical force OR submission to assertion of authority. b. Argued he was seized when police told him to stop, then ran and threw cocaine on the ground. Argued that since he was seized, finding the cocaine was a stop; court says no. If you don’t submit to the authority of a PO when he tells you to stop, you are not seized. 4. Whren v. US pretextual traffic stop is OK. No reasonableness test outside the reason to arrest 5. Atwater v. City of Lago Vista: Minor arrest which is legally permissible. Court refuses to create a rule to limit discretion of police to arrest as granted by the legislature and police departments. 6. Scott v. Harris: Officer ramming offender IS a seizure, but was reasonable under the circumstances. 7. TN v. Garner: Shooting Fleeing felon IS a seizure but was UNreasonable under the circumstances. 8. Mendez: Police reasonable use of force does not become unreasonable simply because it is preceded by a separate 4A amendment.

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What is Probable Cause? 1. Definition: a. Evidence that would warrant a man of prudence and caution in believing the offense has been committed b. Reasonable ground to believe that the accused is guilty c. Facts and circumstances within the arresting officer’s knowledge and of which they had reasonably trustworthy information that are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed 2. WHEN is PC required? a. Arrest or arrest warrant: crime has occurred and arrestee committed crime b. Search warrant : crime has occured and that evidence of crime is present at location c. To conduct warrantless search of auto (Carroll) See S/W Exceptions d. To bring a case to trial via grand jury (same level as arrest (a)) 3. Informant tips a. Draper v. US i. Basis of knowledge: (QUANTITY OF THE INFORMATION) 1. Level of detail (how much detail) is high leads to inference that info was gained reliably ii. Reliability (Veracity) of informant (information) (QUALITY OF THE SOURCE) 1. Corroboration by police indicates no fabrication by informant 2. Informant (non-anon) had proven track record with police b. Spinelli: Both prongs must be satisfied (Gates overrules to Totality of Circumstances) i. Basis of knowledge: how does informant know? How much info is there? ii. Vercity of information: how likely is it the informant is being truthful? c. Illinois v. Gates: Change test to TOTALITY OF CIRCUMSTANCES i. Basis of knowledge. Informant did not explain how they knew + little detail ii. Veracity of information: But officer corroboration leads to verifying veracity strongly. 1. Adding to veracity is predictive info, independently corroborated iii. Switch to Totality of Circumstances instead of dual prong. Allows for anonymous tips d. Di Re: Informant provides info about 1 of 2 veh. occupants. No PC for arrest of 2nd occupant. i. PC must link person to crime. ii. MD v. Pringle: Consent search finds evidence in glove box and raised rear armrest. Without claim of ownership, 3 occupants are arrested. Does MERE PRESENCE CREATE PC for arrest? 1. Car passengers are often engaged in common pursuits. 2. Reasonable inference that all/any had knowledge and exercised dominion/control over evidence. iii. Ybarra v. Illinois: S/W for bar and bartender. Police search patron. 1. Improper search b/c no PC to search patron in warrant. 2. Merely being near a criminal does not give rise to PC for a search. No common pursuits in a bar 4. Warrants (come back with a fucking warrant) a. Required in warrant: i. Oath or Affirmation ii. Supported by PC THAT a Crime occured AND fruits, instrumentalities are located there iii. Describe place to be searched or people or things to be seized: with PARTICULARITY 1. Failure to indicate relevance to crime 2. Failure to describe items sufficiently iv. Issued by NEUTRAL AND DETACHED magistrate 4

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1. Relying on Grand Jury indictment, PC established, subpoenas can bring people to grand jury TEST: Does warrant give proper notice to the respondent AND properly constrain the officer. Process: i. Ex parte, (can be emailed), ii. Magistrate issue add language, or deny warrant iii. Police serve (time sensitive) iv. Scope is restricted to warrant--can only search where the particularized evidence/contraband could be found. Coolidge v. NH: Magistrate issuing warrant is also State AG. i. MAGISTRATE BE NEUTRAL & DETACHED Lo-Ji Sales v. NY: no listing of what is to be seized, magistrate accompanies police to service i. Particularity requirement: MUST STATE WHAT IS TO BE SEIZED ii. Neutral and detached: Magistrate became part of the police. Michigan v. Summers: Summers stopped existing S/W location. Search (after warrant finds drugs in house) of him = drugs and arrest. i. Temporary seizure of people @ S/W location is OK because 1. Police have interest in preventing fleeing in case contraband is found 2. Occupant moving freely can impede search and safety, alert co-conspirators, endanger police 3. Occupants may be able to assist with search (open locks, prevent damage) ii. Does NOT apply to people who depart before execution. Summers was on steps. Defective Warrants i. Franks v. Delaware: overturns unbreakable presumption of warrant validity 1. Affiant (NOT informant) lying (intentional/knowing/reckless misstatement--not negligence/mistake)= INVALID warrant 2. Facial insufficiency = INVALID warrant ii. Payton v. NY: Arrest warrant required to enter a home for an arrest. iii. Minnesota v. Olsen: Overnight guest = same as resident for purposes of arrest b/c satisfies Katz reasonable expectation of privacy. iv. Steagald: Police have tip that person w/arrest warrant in home. Enter & Search = NO 1. When can i go in to look for the guy? I HAVE ARREST WARRANT (but no consent from authorized occupant): a. inkling: NO b. PC: get S/W but then must also have “reasonable grounds” that suspect is still there 2. In Steagald: The fruits of crime seen from illegal entry were suppressed because they only had an anonymous tip that he was there. 3. Note: cannot use an arrest warrant as a pretext for a S/W v. GOOD FAITH EXCEPTION: Generally police can rely on warrant in good faith unless 1. US. v. Leon Factors: a. Issuing judge is purposefully mislead by affiant b. Judge wholly abandons judicial rule c. When warrant affidavit wholly lacks probable cause d. When warrant is facially deficient or lacks a required element

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S/W Exceptions (SPACES) Search Incident to Lawful Arrest (SILA) 1. SCOPE of SILA (Person/Robins a. Robinson: (PERSON (unlimited-includes containers found on person)) Heroin found in Cigarette pack in pocket. BRIGHTLINE: SILA OK b/c: i. Protect officers, prevent escape, prevent destruction of evidence (exigency). b. Chimel: (SURROUNDING (limited: items in arrestee’s control and physical space around arrestee)) Whole Home search subsequent to arrest is unlawful. Robinson factors only apply to area where arrestee may gain possession of evidence or weapon. Confined to “immediate control”: 1. Cuff/restraint 2. Physical characteristics of suspect 3. Ratio of police to suspect 4. Searched item reasonably accessible ii. ***cannot move suspect around the house to get SILA all over the place c. AZ v. Gant: (AUTO) Partially overrules Belton’s bright-line rule which allowed search of vehicle passenger compartment (and containers within) incident to arrest. Gant now requires that a Belton search of vehicle is confined to reaching distance (ability of defendant to access weapons/evidence) & unsecured arrestee OR reason to believe the vehicle contains evidence of the crime arrested for (not other crimes). i. Search governed by time of arrest: Minority ii. Search governed by time of search: Majority d. Chadwick: Police K9 hits on package of train passenger. Leads to seizure (OK) and search (not OK). i. Temporal limit: police had rightfully seized and had plenty of time to get warrant because suspect cannot access the package (Robinson justification fails) ii. Property was under exclusive control of police--NO SILA e. Riley v. CA: SILA of Cell phone contents = NO i. Cell phone different than other evidence ii. See JONES: Privacy concerns (too much personal info--Katz expectation) iii. See CHIMEL/ROBINSON: no reason to fear destruction of evidence or danger to police--therefore, there is opportunity obtain S/W BECAUSE: under exclusive police control. 2. Procedural issues a. MD v. Buie i. Cursory, protective sweeps of a residence are OK to prevent ambush. ii. SCOPE = where persons can be found. b. Knowles v. Iowa: SILA requires actual custodial arrest. Citation only (arrest lawful) does not allow search. c. Cupp v. Murphy: non-formal arrest (PC), fingernail scrapings. Weigh level of intrusion vs. destructibility of evidence.

Plain View (plain touch/smell) 1. Horton v. CA (overrules Coolidge): Weapons no in S/W but found and seized. OK a. Note that Coolidge says: warrant requirement poses no inconvenience. b. Plain view requires: i. Lawful vantage point 6

Lawful access Immediately apparent nature (contraband, evidence, fruits, instrumentalities) 1. Texas v. Brown: officer sees knotted balloon in car. a. Immediately apparent = PC to believe the balloon contained illicit substance 2. AZ v. Hicks: officer moves stereo, reads serial num. = NOT immediately apparent that it is stolen. iv. Inadvertance NOT required. v. MINORITY: requires inadvertence. MAJORITY: FACTOR TO BE WEIGHED vi. Pretext? DISSENT: says a pretextual valid search with intent to encounter plain view evidence, is likely unconstitutional. (because that is not true inadvertance if the officer expects to find contraband but can’t justify it for a s/w) 2. Plain touch/feel/smell: a. Minnesota v. Dickerson: legal Terry pat-down; officer manipulates object in pocket i. Plain touch requires “immediately recognizable” as contraband. May not manipulate the object (see also: Bond) b. US v. Angelo 10th cir: Plain smell = immediately apparent. Allows seizure of bags which were otherwise outside scope of S/W. ii. iii.

Automobile c. CARROLL v. US: movable vehicle doctrine allows search of vehicle based on PC. i. Search allowed if Probable cause to believe Vehicle contains contraband: police may search vehicle and all containers therein that may hold the object of the search. d. Dyke v. Taylor Implement: MUST HAVE PC for CARROLL e. Scope of search: i. CA v. Acevedo: Search of containers w/in vehicles are OK. Same level of expectation of privacy as the rest of the vehicle. (warrant is redundant b/c police could seize container pending S/W). LIMIT = PC to believe that the container contains the contraband. EX: if PC for a rifle in car, can’t search lunch paper bag. ii. Wyoming v. Houghton: Carroll is brightline--all contents, including passenger’s containers. Passengers have reduced expectation of privacy and engaged in common pursuits with driver. Prevents driver from hiding contraband with passenger. iii. Di Re: Passenger arrested for contraband, does Carroll allow search of PEOPLE in vehicle? NO: a person, by mere presence does not lose immunities from search. iv. Chambers v. Maroney: vehicle taken to police station for search-STILL “readily mobile” Not unreasonable to move search to safer location. v. California v. Carney: Motorhome: Is it a home or a car? It is mobile = CAR. 1. “When a vehicle is being used on the highways, or if it is readily capable of such use and is found stationary in a place not regularly used for residential purposes, temporary or otherwise, the two justifications for the vehicle exception come into play”

Consent 1. Burden of proof: government must prove (by preponderance of evidence (Schneckloth)) a. ACTUAL or APPARENT authority b. Freely and Voluntarily given---Given without duress or coercion i. Consenting party may expressly limit the scope of search and may be withdrawn at any time 2. Who is authorized to provide consent? 7

a. LL/Tenant: Chapman v. US: Property rights--LL can only give consent for the scope of their control. Common law right to “view waste” does not transfer to criminal search. b. Cohabitant: US. v. Matlock B/F-G/F: G/F’s relationship to the shared bedroom was sufficient to confer upon her actual authority to search. Voluntary consent of any joint occupant of residence is valid against co-occupant c. Objecting cohabitant: i. GA v. Randolph: objecting cohabitant present. Consenting cohabitant present. BAD SEARCH ii. Fernandez v. CA: objecting cohabitant REMOVED BY POLICE. Consenting cohabitant present after removal: SEARCH OK. d. Hotel: Stoner v. CA: clerk @ hotel gives consent and access to search room of customer. Officers could NOT have reasonably believed clerk had authority. e. Reasonable belief of Officer: G/F had moved out but still had some items. Officers reasonably believed that G/F had authority. (apparent authority). OK for poli...