Criminal Procedure Outline I - Part 1

C. “Search”

1. Physical Trespass (property) - still constitutes a ‘search’ if it is a physical trespass on persons, homes, papers, and effects (although make sure other exception doesn’t apply)
   1. Kyllo: (thermal imaging): (1) gov uses device not generally used by public to (2) explore details of home previously unknowable w/o physical trespass = search and presumptively unreasonable
   2. But see Knotts: GPS ‘beeper’ placed into barrel of chloroform then given to D. and driven around and left outside house = no 4th violation (public roads & no invasion of privacy of home)
   3. And see Karo: GPS ‘beeper’ placed w/ permission of informant into ether can and sold to D. who takes it home and then drives w/ it into other peoples homes → 4th ‘search’ b/c of in-home monitoring (not open to visual surveillance)
   4. US v. Jones: (GPS on wife’s car) → 1) vehicle is an ‘effect’ and 2) gov placement of GPS device on the vehicle constitutes ‘search’ (so need warrant)
   5. *Also under Dog Sniffs*: Florida v. Jardines: dog sniffing in curtilage of home & home = search w/in 4th b/c of sacred property area despite limited capacity
2. Reasonable Expectation of Privacy (REP) - Katz v. Unit3d States (NOTE: If there is REP = “search” but question still remains if it is ‘reasonable’)
   1. Two Prong Test
      1. (1) Subjective: actual demonstrated intent of privacy
         1. (a) “Knowingly” not “purposefully → lower threshold for State b/c only requires knowledge not intent
            1. This is a critique and there should be a critique involving knowing v. purpose on exam
      2. (2) Objective: society will recognize that expectation of privacy as reasonable
         1. (a) Normative & Empirical reasoning (use both on exam)
   2. Doctrinal (‘Exceptions’) to REP:
      1. “False Friends”: NO REP in things said/given to friends/any other person - US v. White ‘criminals assume risk of association w/ other crim’
         1. (a) Lewis: undercover agents not subject to 4th
         2. (b) Lopez: recording by same undercover agent not 4th violation
         3. (c) Hoffa: ppl entrusted w/ info they later reveal = no 4th violation
         4. (d) On Lee: man overheard trusted convo = not subject to 4th
      2. “Third Party Doctrine”: Smith v. Maryland (pen registers): things disclosed to a third party are not subject to 4th violation (No REP)
         1. (a) Miller: bank records not subject to 4th protection
         2. (b) But See → Carpenter v. US: (CSLI Cell Phone GPS data) 1) contravenes public expectation of privacy (cell phone is so personal) & third-party doctrine not mechanical (no ‘meaningful way volunteer this info’)
      3. “Dog Sniffs”: US v. Place: canines only reveal absence or presence of contraband = contraband illegitimate = no REP
         1. (a) BUT SEE → Florida v. Jardines (Dog Sniffing Home Case) = using dogs to sniff w/in home & curtilage = search
      4. “Open Field”: No REP in ‘open field’ - Hester v. US & Oliver = “open field” = undeveloped/unoccupied area of/and outside curtilage of a home
      5. “Curtilage”: US v. Dunn: 4 Factors for Defining Curtilage:
         1. (a) Proximity of area claimed to be curtilage (of a home)
         2. (b) Is area included in an enclosure?
         3. (c) Nature of uses the area is put to?
         4. (d) Steps taken by resident to protect from observation by people passing by
      6. “Aerial Surveillance”
         1. (a) California v. Curtado: police could use private airplane to fly over yard and observe marijuana plants → no REP in police engaging in same behavior as civilians (ppl fly over homes)
         2. (b) Florida v. Riley: Police can use helicopter too!
      7. Garbage: California v. Greenwood: no REP in garbage left outside curtilage of home for trash removal (discarded items = no REP)
   3. Factors in REP Analysis
      1. Nature of place Observed (public v. private)
      2. Steps taken to enhance privacy (closing booth, cupping hands)
      3. Nature of object/activity (binary techniques, readily available equipment)
      4. Physical Nature of Intrusion (location of Observer)

D. Seizure: US v. Karo → occurs when “there is some meaningful interference w/ an individual’s possessory interests in that property” (quoting US v. Jacobsen)

E. Probable Cause: General Rule: warrant based on PC is necessary when police action = search (several exceptions discussed later); also generally used when arresting someone

1. PC exists where facts and circumstances w/in affiant’s knowledge and of which they have reasonably trustworthy info are sufficient to warrant a man of reasonable caution to believe that:
   1. An offense has been committed by the person to be arrested; or
   2. Evidence subject to search and seizure will be found in the place to be searched
2. Augilar-Spinelli Test: Two Pronged (OVERTURNED)
   1. “Basis of Knowledge” = establishing means by which affiant/informant came by info
   2. “Veracity” or “Reliability”: establishes that source of info is honest, trustworthy, credible
3. TOTALITY OF CIRCUMSTANCES = ANALYSIS FOR PC (i.e. still knowledge and reliability but now it’s a continuum, the more you have of one the less you need of the other)
   1. Illinois v. Gates → FL Drug-Cation → removed formal 2 prong test and made TOC (above) b/c 80% of details from anonymous source proved to be true so police had PC
4. PC DOES NOT MEAN PROBABLY & POLICE CAN BE MISTAKEN W/O CONSEQUENCE
5. Franks v. Delaware: steps to challenge truthfulness of statements in affidavit
   1. D. must make “substantial prelim showing” that false statement was made “knowingly & intentionally” or w/ “reckless disregard”
   2. If shown, 4th requires hearing
   3. If perjury is established by preponderance of the evidence, affidavits remaining contents must be examined for PC
   4. If no PC established, warrant invalid and “fruits of tainted tree” suppressed.
   5. ONLY APPLIES TO POLICE OR DA UNDER OATH NOT INFORMANTS TO POLICE
6. NO SLIDING SCALE → either objectively exists or it does not
7. Subjective intent & motivations of officer seeking warrant or making arrest is IRRELEVANT