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Criminal Procedure - Outline Part 4

By Collin B. Hardee

Download the PDF version of this outline

<< Part 3 | Part 5 >>

US v. Jones (2012) → Majority decision written by Scalia makes clear that the Katz “Reasonable Expectation of Privacy” Test did not erode the former Property-Trespass Test, but rather compliments each other – Katz established that the existence of a search would no longer be determined solely by use of “exclusively property-based approach,” but Katz merely established an alternative non-property-based method by which a search could occur.

  • Scalia Test → When the government (1) physically occupies private property for (2) the purpose of obtaining info (even if D had no reasonable expectation of privacy with regard to info that the monitoring device would disclose), such a physical intrusion “would have been considered a ‘search’ within the meaning of the 4th Amendment when it was adopted.”
    • If Physical Trespass → Use Scalia Test = Physical Trespass + Attempt to Find Info (Purpose of finding info) = Search
  • Alito Test → Whether a search has occurred should ALL be decided by “asking whether D’s reasonable expectations of privacy were violated by the long-term monitoring,” i.e., an exclusively Katz-based analysis – “Relatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable. But the use of long-term GPS monitoring in investigations of most offenses impinges on expectations of privacy.”
    • If NO Physical Trespass → Use Alito Test = Short term monitoring is OKAY, but Long-Term monitoring is a SEARCH
      • Alito does not define the line between short and long term, but does say that anything more than 4 weeks (28 days) is long term monitoring
Subjecting a Recidivist Sex-Offender to Nonconsensual, Life-Long, Satellite-Based Monitoring (SBM) Via Ankle Monitor – Search?

Grady v. NC (2015) → The Fourth Amendment protections extends beyond the sphere of criminal investigations, i.e., also applies in civil context. “A State also conducts a search when it attaches a device to a person’s body, without consent, for the purpose of tracking that individual’s movements.”

Dog “Sniff Test”

Rule: High probability that Supreme Court recognizes “plain odor” seizures – the use of dogs to perform a canine “sniff test” to detect illegal did not constitute a 4th Amendment “search” at all

  • United States v. Place (1983) (airport) - canine search in an airport does NOT constitute a "search" due to its "limited capabilities"
    • Place Reasoning → since a sniff test by a well-trained dog “discloses only the presence or absence of narcotics, a contraband item,” the sniff test does not compromise any legitimate privacy interest of the person whose possessions are being sniffed (b/c no has the right to possess contraband, and thus no right to object to the disclosure that he is in possession of contraband.)
  • Illinois v. Caballes (2005) (traffic stop) - reaffirmed Place.
    • Caballes Reasoning → Relied on Place to hold that since D’s car was properly stopped for a traffic violation, the use of a dog to sniff around the exterior of his car for contraband did not amount to an extra Fourth Amendment intrusion (and thus could legally occur even in the absence of any suspicion of drug activities.)

Test for Odor of Contraband → if the police, while standing in a place they have a right to be, use a dog to perform an odor test that merely determines whether contraband is present or not, no search takes place, b/c no info about a legally-possessable substance is being revealed

  • NOTE: Court did not answer the question of whether government may rely on a “plain odor” doctrine to run canine sniff tests in public places to find the existence of substances that may be legally possessed
    • Hypo: Dog sniff. Not search under Place. Sniff detect odor outside of bag.
    • No reasonable expectation of privacy with contraband.
    • Dog sniff is NOT a search, but if police officer then opens bag = SEARCH.

Florida v. Jardines (2013) → Police use of a sniffer dog even to determine solely whether contraband is present can avoid being a 4th Amendment search ONLY IF the police and the dog are standing in a place where they have a legal right to be – when police brought a trained drug-sniffing dog onto a homeowner’s front porch to investigate whether the house contained narcotics, a 4th Amendment search occurred, regardless of whether the owner had a reasonable expectation of privacy as to the porch or as to the odors perceived by the dog

  • Issue – Whether the police, by bring a drug-sniffing dog onto D’s porch and letting him sniff, conducted a 4th Amendment search?
  • Holding/Reasoning – Was a search; quoting Jones, that when “the Government obtains info by physically intruding” on persons, houses, papers, or effects, a ‘search’ within the original meaning of the 4th Amendment” has “undoubtedly occurred.”
What is a “Seizure”?

US v. Karo (1984) – Issue → Whether installation of a beeper in a container of chemicals with the consent of the original owner constitutes a seizure within the meaning of the 4th Amendment when the container is delivered to a buyer having no knowledge of the presence of the beeper?

  • What is a “Seizure”? → (quoting US v. Jacobsen (1984) – A “seizure” of property occurs when (1) “there is some meaningful interference (2) w/ an individual’s possessory interests in that property.”
Objects Subject to Seizure

Law enforcement officers may seize what they have probable cause to believe is criminal evidence. Four categories of seizable items are:

  1. Contraband – evidence that may not be lawfully possessed by a private party
  2. Fruits of a Crime
  3. Instrumentalities Used in the Commission of an Offence (e.g., a weapon, an automobile for the get-away, etc.)
  4. “Mere evidence” – an item of value to the police solely b/c it will help/aid in the apprehension or conviction of a person for an offence (e.g., blood stained shirt) (since 1967)
“Probable Cause” Generally
  • The 4th A prohibits unreasonable search and seizures – this means that searches and seizures must be supported by probable cause, i.e., a search or seizure conducted in the absence of probable cause ordinarily is considered an unreasonable one
    • Probable Cause to Arrest “exists where ‘the facts and circumstances within the officer’s knowledge and of which they have reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed” by the person to be arrested
    • Probable Cause to Search “exists where ‘the facts and circumstances within the officer’s knowledge and of which they have reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that’ evidence subject to seizure will be found in the place to be searched
      • Must specify an item in one of the 4 seizure categories
  • Procedurally, the issue of probable cause arises in two circumstances:
    • The police may apply to a magistrate for an arrest or search warrant. Warrants constitutionally may only be issued if there is probable cause to make the arrest or conduct the search. Therefore, the police must set out for the magistrate, under oath, the info in their possession that they believe justifies issuance of the warrant, i.e., the facts that constitute probable cause for the arrest or search → Arrest or Search Warrant
    • Police may conduct an arrest or search without a warrant. Assuming that it results in seizure of criminal evidence, the D may seek to have this evidence excluded from the trial at a suppression hearing arguing that the police acted in violation of the 4th Amendment b/c they did not obtain a warrant, or that police lacked probable cause (If the police had sought a warrant, would it properly have been granted?) → Warrantless Searches and Arrests

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