Crim Pro Outline

I. 4th Amendment: The right of the people to be secure in their persons, 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 place to be searched, and the persons or things to be
seized.
II. Four Primary Issues:
a. Scope: What is “search” and “seizure”?
b. Content: What makes a search or seizure unreasonable?
c. Relationship: Is reasonableness related to probable clause for warrants?
d. Remedy: What do we make on silence of remedies?
III. Remedy: What do we make on silence of remedies?
a. Exclusionary Rule: because all 4th cases are about the admissibility of evidence,
it requires some basic understanding that a rule exists governing admissibility
i. Excludes evidence that was obtained against the 4th
ii. Justifications: need necessary deterrent and need legitimate
government
iii. Designed to protect guilty defendants and innocent people whose private
property have been invaded by government officials
IV. Scope: What is “search” and “seizure”?
a. Government conduct must constitute a search or seizure of a person, house, paper,
or effect (question of law for the judge)
b. The Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection
c. Harlan Concurrence: Two-Prong Test (Reasonable Expectation of Privacy)
i. A person must exhibit an actual subjective expectation of privacy; and
ii. That expectation is one society is prepared to recognize as "reasonable"
- Reasonable expectation (empirical analysis): when a
reasonable person would not expect her privacy to be
seriously at risk; contains a matter of significant statistical
probability
- Legitimate expectation (normative analysis): a value
judgment that someone ought to have the right to privacy in
a certain circumstance
d. False friend doctrine: a person has no legitimate expectation of privacy in
information that the person voluntarily turns over to third parties (false friend)
e. Dog Sniffs: no right to privacy in contraband once dog identifies something but
the sniff itself is not a search and is constitutional BUT cannot use dog to sniff
around someone’s home for something inside the house
f. Open Field v. Curtilage (four+ factors)
i. Proximity of the area claimed to be curtilage to the home
ii. Whether the area is included within an enclosure surrounding the home
iii. The nature of the uses to which the area is put
 iv. Steps taken by the resident to protect the area from observation by people
passing by
v. The extent to which the surveillance is unnecessarily intrusive
g. Aerial Surveillance of Curtilage: not a search because airspace is public
h. Garbage: no search when out outside
i. Tracking Device: unconstitutional if warrantless
j. Two models for 4th search
i. Property approach: physical trespass onto “person, house, paper, effect” is
a search and presumptively invalid without a warrant
ii. Reasonable expectation approach: search occurs if it infringes upon
something over which an individual has a subjective expectation of
privacy that society us prepared to recognize as reasonable
V. Probable Cause: exists where the facts and circumstances within the officers
knowledge and of which they have reasonable 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
a. Need probable cause for warrants and warrant exceptions
i. A search and seizure conducted in the absence of probable cause
ordinarily is considered an unreasonable one and therefore a violation of
the 4th
b. Two prongs for affidavit for a warrant (both must plausibly point to criminal
activity):
i. Basis of knowledge: personal observation; direct personal knowledge
ii. Reliable information: detailed background; prediction of the future;
presumed if officer or prosecutor; innocent citizen; good reputation
- Need to look at totality of circumstances to establish
probable cause if it an anonymous tip
- If hearsay need two things: 1) informant must declare that
he has himself seen or perceived the fact or facts asserted;
OR 2) that his information is hearsay, but there is good
reason for believing it
c. Arrest Warrants:
i. All arrests must be based on probable cause
ii. An officer may arrest a person in public without a warrant
iii. May not arrest a person in her home without a warrant, absent exigent
circumstanced or consent
iv. May not arrest a person in another person’s home without at least a search
warrant, absent exigent circumstances or consent
EXIGENT CIRCUMSTANCES/EXCEPTIONS:
1. Hot Pursuit of a Fleeing Felon Exception: 1) must begin in
PUBLIC and then go into their own home (must be pursuit of a
FELON) –need reasonable cause to believe if no immediate entry:
2) evidence will be destroyed; OR 3) suspect will escape; OR 4)
harm will result to police or others inside/outside building
(consider gravity of harm AND likelihood of suspect is armed)
 - Arrest made without a search warrant does not
automatically release the arrestee but can move for a
motion to suppress the evidence that was seized
- Objective reasonableness for force used: requires careful
attention to the facts and circumstances of each particular
case, including the severity of the crime at issue; whether
the suspect poses an immediate threat to the safety of the
officers or others, and whether he is actively resisting arrest
or attempting to evade arrest by flight (look at totality of
circumstances)
2. Search Incident to Someone’s Lawful Arrest Exception (SILA):
only applies after the person has been arrested
- Arrestee’s person
- Immediate vicinity (lunge area)
- In a home, immediate adjoining area for co-conspirators
- For occupants/recent occupants of automobile, the
passenger compartment od vehicle, unless suspect has ben
secured and cannot access vehicle interior (can search
interior if reasonably believe there is evidence of the
offense of arrest in the vehicle)
3. Automobile Exception: an officer may search the arrestee’s
person and an arrestee’s
- Entire vehicle is lunge area as a matter of law: incident to a
lawful arrest the police may search the area within the
arrestee’s immediate control
- Mobile home is an automobile exception
- Vehicle in the curtilage of the home is protected as the
home would be
- Need probable cause for containers in vehicle
- Can perform a nonconsensual breath test but not a blood
test
- Cannot search a cellphone