Criminal Procedure Outline - Professor Fields 2021 - Campbell Law - Part 1

d. Threshold Questions

1. Who is conducting the action: Police? Or private actor?
2. What is the government action and is the action a “search”?
   1. “Search” in the 4th Amendment context is a term if art
   2. If it’s not considered a “search” for 4th Amendment reasons, the analysis stops and constitutional rights are not afforded
   3. Key is whether the police action is considered a “search” under the 4th Amendment
3. If the action is a search under the 4th Amendment, is the search reasonable?
   1. Based on probable cause/supported by warrant
   2. Or under one of the established exceptions to the warrant requirement

e. Katz and New Technology

1. Florida v. Riley (whether surveillance of the interior of a partially covered greenhouse in a residential backyard from the vantage point of a helicopter 400 feet above the greenhouse constitutes a ‘search’ under the 4th Amendment) Riley Test: Could a member of the public legally have been there?
   1. No expectation of privacy in the public airways at this altitude—not a search
   2. He had a subjective expectation of privacy but not an objective expectation of privacy
2. Kyllo v. US (whether the use of a thermal-imaging device aimed at a private home from a public street to detect relative amounts of heat within the home constitute a “search”: Yes, it’s a search)
   1. Kyllo Rule: When police
      1. Use a device;
      2. That is not in general public;
      3. To explore details of a private home;
      4. That would be previously unknown without physical intrusion;
      5. It’s a search
         **Final exam always tries to lead you to Kyllo but it won’t apply because it won’t be a home (extremely limited to its facts)
         1. Did not overrule Riley
         2. Home most protected → curtilage → open field not protected
3. US v. Jones (GPS tracking device installed on the undercarriage of a Jeep used by Jones, suspected of trafficking narcotics, while he was parked in a public lot—tracked car’s movements for 28 days)
   1. 1. Holding: it is a search – government physically occupied private property for the purpose of obtaining information (trespass)
         1. Scalia doesn’t apply Katz, he cares more about the putting of the tracker on the car and calls that a trespass
            1. Under Greenwood→not a search because 3rd Party Doctrine (exposing movements on public streets)
            2. Kyllo doesn’t apply because not a home
            3. Riley→not a search because members of the public could be there
         2. Significance: now two ways to get to a search – physical intrusion or Katz standard
         3. Mosaic Theory of 4th Amendment: a little is not a search, but when you start piecing it together – it becomes a search
      2. Knotts (beeper in chloroform for 1-2 days): no reasonable expectation of privacy in movements – here, 28 days
   2. Florida v. Jardines (received tip growing marijuana in home, took a drug dog to porch)
      1. Curtilage of house enjoys protection as part of the home itself
         1. No reasonable expectation of privacy in smells emanating from house
      2. Police can walk on porch but no drug dog, police dog waives license
      3. This is a search—based on trespass

f. The Future of Katz, 3rd Party Doctrine, and Trespass

1. Carpenter v. US (2018) (FBI identified cell phone numbers, obtained cell phone records under Stored Communications Act, got CSI for Carpenter’s phone, cataloging his movements over the next 127 days): This was a search under the 4th Amendment
   1. How do we get to reasonable expectation of privacy?
      1. Knotts: no reasonable expectation of privacy in your movements
      2. Jones: search because physical trespass of vehicle (he never mentions that the 28 days being surveillance was concurrence)
      3. Court says one day and Jones 28 days (distinguishes Knotts) → at some point becomes a search
   2. Technically Carpenter is limited to its facts (but not really) probably reasonable expectation over movements for long period of time
   3. Exception to 3rd party doctrine—balance for when privacy interest outweighs the transfer to 3rd parties