Introduction to Criminal Procedure

Introduction to Criminal Procedure.  The Supreme Court: from Civil Liberties to the Tough-on-Crime Era. o The Warren Court (1953-1969, especially 1962-1969) “Criminal Procedure Revolution”—emphasis on civil liberties and rights of criminal defendants. o Burger, Rehnquist, Roberts Court (1969+)—emphasis on empowering law enforcement and limiting Warren Court decision.  The Fourth Amendment. o “The right of the people to be secure in their person, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the places to be searched, and the persons or things to be seized.”  Fourth Amendment only applies if a government agent carries out a “search” or “seizure.”  The Basics of a Search: a search under the Fourth Amendment occurs if: o A government agent/agency violates a person’s “reasonable expectation of privacy” (Katz), or o A government agent physically trespasses on a constitutionally protected area (that is, a person, house, paper, or effect, where “house” includes the curtilage but not open fields outside the curtilage) for the purpose of obtaining incriminating evidence (Jones).  What is a search under the Fourth Amendment? Some specifics: o No reasonable expectation of privacy for trash left for collection in an area accessible to the public and outside the curtilage of a home (Greenwood). 1 o Use of a thermal imager (technology “not in general public use” at the time of case) on a home from outside the curtilage constitutes a search (Kyllo). o Use of a beeper to track an automobile on public roads is not a search because there is no reasonable expectation of privacy in movements on a public highway from one place to another (Knotts: “public exposure”). o Use of pen register is not a search, there is no reasonable expectation of privacy for numbers dialed on telephone— because the information is conveyed to telephone company (Smith v. Maryland: “third-party doctrine”).  Fourth Amendment prohibits unreasonable searches or seizures. o Initial issue is whether a search or seizure occurred at all, without any search or seizure there can be no Fourth Amendment violation. o SCOTUS recognizes two different types of Fourth Amendment searches: one depending on a defendant’s privacy interest and the other on a defendant’s property interest.  For both types, the Fourth Amendment prohibits unreasonable searches of persons, houses, papers, and effects.  If a search does not fall under any of these categories, then it is not subject to Fourth Amendment restraints. o Privacy Interest Search: When a law enforcement or government agent discovers, inspects, or monitors a person (or their oral or written communications), personal property, or home with the agent’s senses (touch, sight, hearing, or smelling) and detects something incriminating, they have violated the individual’s reasonable expectation of privacy (Katz). 2  A trespass on the personal or real property that results in a law enforcement officer’s detection of incriminating evidence of information qualifies as a search even if it does not violate the property owner’s reasonable expectation of privacy (i.e., officers placing a GPS under a car without a warrant and monitoring a suspect for several weeks) (Jones). o Property Interest Search: A person’s private activity is generally protected if it occurs in their residence (traditional home, apartment, hotel room, etc.). This includes the curtilage, or the area immediately outside of a home that society recognizes as being afforded special privacy protections under property law (examples: porches, backyard patios, etc.) (Jones).  What is a search? More Specifics: o “Open Fields Doctrine”: no reasonable expectation of privacy in “open fields,” i.e., areas on property outside the “curtilage,” to be defined on a case-by-case basis by considering four factors:  Proximity of the area to the home;  Whether area included in enclosure surrounding the home;  The nature of uses to which area is put; and  Other steps to protect area from observation by passers-by. o No search was conducted when law enforcement walked around a locked gate with a “no trespassing” sign (Oliver); no search conducted when law enforcement crossed several fences and peered into a barn with flashlight (Dunn). o No search was conducted when law enforcement viewed the defendant’s land with naked eye or ordinary camera from a plane in public airspace (California v. Ciraolo). 3 o No search conducted when law enforcement viewed a partially covered greenhouse from a low-flying (400 ft) helicopter (Florida v. Riley).  Limiting the Third-Party Doctrine in the Digital Age: o There is a reasonable expectation of privacy in long-term historical cell site location information—even though shared with cell service provider; this is a narrowing of the third-party doctrine in response to the digital age (Carpenter).  A person does not possess a reasonable expectation of privacy in information voluntarily shared with a third-party (Smith v. Maryland), except when third-party records allow law enforcement officials to detect public movements of a person for at least seven days (Carpenter).  Law enforcement officers can obtain a person’s bank records of the telephone calls made to and from the person’s phone; this is not a search under the Fourth Amendment. o The Use of Narcotic Dogs:  Sniff by a trained narcotics dog in a public place is not considered a “search” (Place).  A sniff by a trained narcotics dog within the curtilage around a home is a “search”—based only on the trespass test from Jones, not the reasonable expectation of privacy test from Katz.  Sniff by a trained narcotics dog of a car during a traffic stop is not considered a “search” (Caballes).  But if officers, without reasonable suspicion, lengthen a traffic stop to conduct a narcotics dog sniff, then the stop becomes an unreasonable seizure (Rodriguez). 4  An alert by a qualified narcotics dog presumptively creates probable cause for search (Florida v. Harris).  A person has no reasonable expectation of privacy in the airspace outside their luggage or car. A police-trained dog, certified to detect illegal substances, provides probable cause when the dog alerts agents to a suspect’s car or luggage in a public place (Florida v. Harris & Illinois v. Caballes). o Officers can seize the luggage until a warrant is given or search the car under the automobile exception. 5