Chapter 3: Investigative Constitutional Law

1. Chapter 3: InvestigativeConstitutionalLaw Property Seizures and Non-Serches

2. Chapter 3: Property Seizuresand Non-Searches • The Four Categories of Seizable Things • Not everything a criminal investigator encounters can necessarily be seized. The court has listed four categories of property that are potentially seizable. • Contraband • Examples of contraband could include narcotics and paraphernalia, machine guns, sawed-off shotguns, armor-piercing ammunition, grenades, explosives, counterfeit printing plates, pirated DVDs and CDs, forged credit cards and identity documents, and child pornography. Investigative Constitutional Law

3. Chapter 3: Property Seizuresand Non-Searches • The Four Categories of Seizable Things • Evidence • For example, blood, hair follicles, skin, semen, clothing, bedding, condoms and weapons might be evidence of rape; computers, books, magazines, DVDs and videotapes could be evidence of possession of child pornography; weapons and masks might be evidence of robbery. • Fruits of the Crime • This would typically be stolen goods, money, anything acquired with stolen or forged credit… Investigative Constitutional Law

4. Chapter 3: Property Seizuresand Non-Searches • The Four Categories of Seizable Things • …cards, or any assets purchased with the proceeds of illegal drug trafficking or other criminal enterprise. • Instrumentalities of the Crime • For example, particular devices or implements could include many kinds of objects, such as a robbery note, a murder weapon, a computer and printer for forgeries, drug packaging materials, lock-picking devices, photography equipment and storage discs, for example. Investigative Constitutional Law

5. Chapter 3: Property Seizuresand Non-Searches • The Four Categories of Seizable Things • In review, the four categories of seizable property are contraband, evidence and the fruits and instrumentalities of a crime. • Related Case Law: Cooper v. California, Cardwell v. Lewis, and California v. Carney Investigative Constitutional Law

6. Chapter 3: Property Seizuresand Non-Searches • The General Rule • The term “evidence” may be used generically to include the other three categories of objects, as well as items having an evidentiary value but not necessarily fitting the description of contraband or the fruits or instrumentalities of the crime. • In Warden v. Hayden, the Supreme Court stated the general rule that the four categories of seizable materials are “evidence [and] fruits, instrumentalities, or contraband.” • For example, contraband drugs would be evidence of the commission of a narcotics offense; equipment used for forging credit cards would be evidence of the forgery; and stolen property would be evidence of a burglary. Investigative Constitutional Law

7. Chapter 3: Property Seizuresand Non-Searches • The Three Requirements for Seizures • Lawful Access • If access to seizable objects is acquired via an earlier unreasonable search, detention or arrest, the objects could be the suppressible fruits of the earlier illegality. • For any seizure to be lawful, the seizing officer must have a lawful right of access to discover and seize the evidence. • Related Case Law: Horton v. California Investigative Constitutional Law

8. Chapter 3: Property Seizuresand Non-Searches • The Three Requirements for Seizures • Immediately-recognizable Character • If the object must first be touched or inspected in some manner in order to determine its contraband or evidentiary character, the seizure is only lawful if the officer had an acceptable basis for the inspection. • The nature of the item must be immediately apparent. • Related Case Law: Bond v. US, and Arizona v. Hicks Investigative Constitutional Law

9. Chapter 3: Property Seizuresand Non-Searches • The Three Requirements for Seizures • Probable Cause to Associate the Item with Criminal Activity • An officers must have probable cause to believe the item is evidence, contraband or the fruits or instrumentalities of crime. • Every seizure must be based on probable cause to connect the item with some criminal act. • Related Case Law: Payton v. New York, and Ornelas v. US Investigative Constitutional Law

10. Chapter 3: Property Seizuresand Non-Searches • Abandoned Property • The police can retrieve, examine and retain as evidence any property that reasonably appears to have been abandoned by the suspect. • Abandoned property supports no reasonable expectation of privacy or possessory rights, and it can be collected and examined without a warrant or any justification. • Related Case Law: Hester v. US, Abel v. US, and California v. Greenwood Investigative Constitutional Law

11. Chapter 3: Property Seizuresand Non-Searches • Open Fields • There are some crimes that are committed partially or entirely in open fields such as marijuana cultivation, livestock theft, theft of crops, land fraud, trespass, illegal dumping, and, sometimes, rape and murder. • Generally, forest lands, deserts, farmland, parks and even extended yards may fall into the open field category. • There is no reasonable expectation of privacy in open fields, outside the curtilage of the home. • Related Case Law: Oliver v. US, Hester v. US, and Dunn v. US Investigative Constitutional Law

12. Chapter 3: Property Seizuresand Non-Searches • The Four Requirements • The Supreme Court recognized that a “fine-tuned formula” for determining the extent of the curtilage was not possible, the court nevertheless gave a list of factors to be considered: • The proximity of the area claimed to be curtilage to the home. • Whether the area is included within an enclosure surrounding the home. • The nature of the uses to which the area is put. • The steps taken by the resident to protect the area from observation by people passing by. Investigative Constitutional Law

13. Chapter 3: Property Seizuresand Non-Searches • “Curtilage” Definition and Rules • The curtilage is a protected area immediately surrounding a residence, that enjoys the same Fourth Amendment protection as the home itself, requiring either a warrant or some recognized exception for entry, search and seizure. • The curtilage will typically include the garage, storage shed, patios and adjacent yard of a home, especially if they are enclosed by a common fence or wall around the house. • There is no Fourth Amendment protection for activities or objects within the curtilage that are exposed to lawful view. Investigative Constitutional Law

14. Chapter 3: Property Seizuresand Non-Searches • Third-Party Delivery • When a criminal entrusts incriminating property to a third party, he or she assumes a risk that the third party will reveal this to officials. • Police may lawfully take possession of contraband or evidence, fruits or instrumentalities turned over by a third party. • Related Case Law: US v. Jacobsen, and US v. Miller Investigative Constitutional Law

15. Chapter 3: Property Seizuresand Non-Searches • Controlled Delivery • When criminal investigators conduct a “sting” operation to supply drugs, stolen property, or other illicit material to those who traffic in such items, or when officers lawfully intercept such materials in transit, they can arrange for completion of delivery under controlled circumstances. • Reopening a closed container once its contents have been lawfully determined does not require a warrant or exception, provided the suspect has not had an opportunity to remove the contents. • Related Case Law: Illinois v. Andreas Investigative Constitutional Law

16. Chapter 3: Property Seizuresand Non-Searches • Use of the Senses • Police can seize objects that have been exposed to detection through use of the senses, those items can be seized from places where law enforcement officers have lawful access. • Plain View • Seizable objects in plain view of an officer who has lawful access and probable cause to connect the objects with criminal conduct can be seized without a warrant. • Plain Feel • The “plain feel” exception allows warrantless… Investigative Constitutional Law

17. Chapter 3: Property Seizuresand Non-Searches • Use of the Senses • …seizure of lawfully felt items that are immediately apparent as seizable property. • Plain Shape • If an officer can articulate reasons to believe that the appearance of a particular container betrays its contents as something that can be seized, the seizure may be justified under the “plain shape” doctrine. • Plain Smell • A discovery made through plain smell does not… Investigative Constitutional Law

18. Chapter 3: Property Seizuresand Non-Searches • Use of the Senses • …constitute a search and can provide probable cause for a seizure of evidence where police have lawful access. • Plain Hearing • Incriminating utterances overheard through “plain hearing” by an officer or informant while in a place he or she has a right to be are not made inadmissible under the Fourth Amendment exclusionary rule. Investigative Constitutional Law

19. Chapter 3: Property Seizuresand Non-Searches • Use of Enhancement Devices • Illumination and Magnification • Surveillance and routine observations of objects and activities exposed to plain view can lawfully be aided by the use of binoculars, telescopes, flashlights and spotlights. • Related Case Law: US v. Lee, and Texas v. Brown • Thermal Imaging • When thermal imaging devices are used to measure the heat emitting from a private residence, their use must be authorized by warrant. Investigative Constitutional Law

20. Chapter 3: Property Seizuresand Non-Searches • Use of Enhancement Devices • Tape Recording • The general constitutional rule for recordings is that police officers may lawfully record what they can lawfully see and hear. • Related Case Law: Lopez v. US • Wiretaps and Bugs • Installation of a wiretap or bugging device must usually be authorized by court order or search warrant. • Related Case Law: Katz v. US and Silverman v. US Investigative Constitutional Law

21. Chapter 3: Property Seizuresand Non-Searches • Use of Enhancement Devices • Pen Registers and Trap-and-Trace Devices • The installation of a “pen register” by the telephone company allows a record to be made of the telephone numbers of outgoing calls. • A “trap-and-trace” set-up allows the phone company to trap incoming calls and trace them back to the telephone from which they originated. • The use of pen registers and trap-and-trace devices must be authorized by court order. Investigative Constitutional Law

22. Chapter 3: Property Seizuresand Non-Searches • Use of Enhancement Devices • Electronic Surveillance • Tracking beepers can be attached to a vehicle or object to which police have lawful access and can be tracked on public streets without a warrant, but monitoring within private premises requires prior court approval. • Judicial authorization for installation and tracking of the beeper will eliminate the potential for problems. • Related Case Law: US v. Knotts and US v. Karo Investigative Constitutional Law

23. Chapter 3: Property Seizuresand Non-Searches • Detentions of Property • Potentially-seizable property may be briefly detained based on reasonable suspicion of criminality. • Related Case Law: US v. Van Leeuwen and US v. Place • First Amendment Materials • First Amendment materials (such as photographs, recordings, films and digital storage) receive heightened protection against search and seizure and require special precautions not generally applicable to most evidentiary seizures. Investigative Constitutional Law

24. Chapter 3: Property Seizuresand Non-Searches • Civil Liability for Unlawful Seizures • An unreasonable seizure of property violates the Fourth amendment and so creates the potential for civil liability. • In the case of Soldal v. Cook County, Illinois, the court held that the Fourth Amendment was not limited in its application to criminal cases, but protected people’s possessory interests in property from unreasonable seizures in both the civil and criminal context. Investigative Constitutional Law