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Criminal Procedure - Outline Part 2

By Collin B. Hardee

Download the PDF version of this outline

<< Part 1 | Part 3 >>

Wiretaps, Informants, Hidden Microphones, etc.

Olmstead v. US (1928) → 1st telephone wiretap case to reach the Supreme Court

  • Held: messages passing over telephone wires were not within the 4th Amendment’s protection against unreasonable search and seizure
  • Relied on physical trespass rationale (overturned by Katz) – 4th can only be violated by physical trespass on subject’s property; since the tap had been placed on wires outside D’s premises, no 4th Amendment violation could have occurred

Katz v. US (1967) → unauthorized electronic eavesdropping is an illegal search and seizure, even though it involves only intangible conversations, and even though no physical trespass onto the speaker’s property occurs.

  • Since the 4th Amendment protects people, not places, it did not matter whether the telephone booth was a “constitutionally protected area”
  • Constitutional protection must be accorded to a person who justifiably relies upon the privacy of a particular place (e.g., home, office, car, telephone booth, etc.)
  • Harlan’s Reliance Test → an unauthorized wiretap violates the 4th Amendment if the subject places justifiable reliance on the privacy of the particular place regardless if the place is public or private
Pre-Katz View of “Bugged Agents” (w/ Recording/Transmitting Device)
  • Occurs when government either uses an INFORMANT that suspect already knows OR uses an AGENT to induce the suspect to confide in the suspect

On Lee v. US (1952) → (still applied the physical trespass test for 4th Amendment S&S violations) in the absence of a physical trespass there was no “search and seizure”

  • Facts: an informant was “wired for sound” and a conversation between him and the defendant, occurring within the defendant’s house, was transmitted by radio to a narcotics agent. The agent testified at court as to the substance of the conversation
  • Bottomline: NOT A SEARCH, therefore NO warrant required, therefore NOT a 4th Amendment violation

Lopez v. US (1962) → the use of a tape-recorder by a secret agent was approved by the Court

  • Bottomline: NOT A SEARCH
Pre-Katz Use of “Unbugged Agents” (w/o Recording/Transmitting Device)
  • Unbugged Agent: agents who testify at trial from recollection as to the incriminating statements made to them
  • Summary: the use of unbugged agents involves no intrusion by the government but only “misplaced trust” by the suspect in the agent or informant

Lewis v. US (1966) → no 4th Amendment violation b/c the defendant “invited the undercover agent to his home for the specific purpose of executing a felonious sale of narcotics,” as well as the agent did not “see, hear, or take anything that was not contemplated and in fact intended by petitioner as a necessary part of his illegal business.”

  • The Court held that the defendant WAIVED his 4th Amendment rights in his home since he had converted it to a “commercial center”

Hoffa v. US (1966) → one of Hoffa’s Teamsters-turned-informant regularly overheard conversations concerning Hoffa’s plan to bribe jurors. Since Hoffa’s statements were totally voluntary, no 4th Amendment search or seizure occurred and Hoffa’s misplaced trust was his own fault

Post-Katz Use of Agents

US v. White (1971) → NO 4th Amendment right was involved because of the following reasoning:

  • NO Expectation of Privacy: when a person misplaces his trust, and makes incriminating statements to a bugged OR unbugged informer, he does not have any “justifiable expectation of privacy” which has been violated; there is no 4th Amendment protection for “wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.”
  • White Erodes the Katz “Justifiable Reliance” Concept → White necessarily assumes that a person cannot “justifiably” trust and talk to anyone, regardless of how close. A new test might be based on a “possible risk of disclosure.
  1. White (1971): Not search.
  2. On Lee (1952): Nearly identical facts of White. No trespass when criminal informant entered.
  3. Lopez (1963): False friend “wired.” No 4A violation for undercover to secretly record D using a hidden device. Reliable evidence. No unlawful physical invasion (trespass theory).
  4. Hoffa (1966): False Friend/Undercover Agent. NOT search. 4A provides no protection for “a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.” Assumption of the risk. “It is the kind of risk we necessarily assume when we speak.”
Other Cases Refresher: NONE are Searches. “Assume the Risk”
  1. Gov't eavesdrops on conversation between A and B
    • Katz - phone booth wired
      • Held: Search without warrant. Inadmissible evidence.
  2. Gov't participates in the conversation itself (false friend or undercover agent)
    • Hoffa - friend is actually gov't informant. NOT “search”
    • Lewis - gov't send secret agent who conceals his identity to make a purchase of narcotics
  3. False friend tapes conversation or is "wired"
    • Lopez - agent carries electronic equipment to record Δ's words. No physical invasion.
    • On Lee - radio equipment simultaneously transmits conversations to recording equipment located elsewhere or other agents monitoring the transmitting frequency
      • Held: testimony admissible
    • White - friend turned gov't informant transmitting conversations
      • Held: testimony admissible

Smith v. Maryland (1979) → an individual has no legitimate expectation of privacy in the numbers dialed on his telephone b/c he voluntarily conveys those numbers to the telephone company when he uses the telephone.

3rd Party Disclosure Doctrine

Rule → when an individual voluntarily transfers info to a 3rd party, the transferor enjoys no further 4th Amendment protection as to that information – government may DEMAND that the 3rd party turn the info over, even if the government not only lacks probable cause or a warrant, but doesn’t even have reasonable grounds for suspecting that the info may be relevant to a criminal investigation

US v. Miller “The 4th Amendment does NOT prohibit the obtaining of info voluntarily revealed to a 3rd party and conveyed by him to government authorities, even if that info is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the 3rd party will not be betrayed.”

  • Any info you voluntarily convey to a 3rd party; you no longer have reasonable expectation of privacy
  • Miller - don’t need warrant to get everything from bank because you voluntarily gave info to bank
    • US v. Miller (1976) → when the customer of a bank gives banking-related info to the bank in furtherance of the relationship, the customer will be found to have no reasonable expectation of privacy in the material, i.e., the government MAY subpoena that material from the bank without showing probable cause that the material is evidence of crime
      • The subpoena does NOT even constitute a “search” for purposes of the account-holder’s 4th Amendment rights
      • A person has NO reasonable expectation of privacy w/ respect to the document b/c “the depositor takes the risk, in revealing his affairs to another, that the info will be conveyed by that person to the government.”
  • Facebook - gov’t gathering huge amount of personal data
    • Ex. facial recognition, likes, age… if facebook has all of this info, gov’t can have all this info.
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