4th 5th and 6th Amendment

8 November

• Posner, "The Uncertain Protection of Privacy by the Supreme Court," 1979 S. Ct. Rev. 173 (1979)
  A nice overview, including the history of privacy law.
• So what were the founders trying to protect with 4A? What were the powers of the king that outraged them? The big things were "writs of assistance:" local officials could seek a writ from the king, without any review by a neutral magistrate, just on a mere suspicion standard, without any probable cause required. Just blanket permission to search whole areas of town. Oh, and more or less without time limits.
• So now we've got particularity of pleadings, time limits, probable cause, review by neutral magistrate.
• James Otis ("taxation without representation is tyrrany") spoke out against these.
• See Semayne's Case in Olde England: the knock and announce rule in 1604 (Lord Coke). Then 1765: Entick v. Carrington (suit in trespass against the crown, sovereign immunity is the defense: the particularity requirement).
• The colonies started passing legislation reacting to these general warrants. The exclusionary rule is a fairly modern creation; the remedy used to be a suit in trespass (civil damages, return of evidence).
• Nowadays a suit in trespass might not provide adequate redress-- the sovereign doesn't like getting sued, so the laws are written to make that more difficult.
• Remember that 4A is only about government action. If UPS security finds your drugs, and calls the police, there's no 4A violation. Private action in searches and seizures does not implicate 4A.
• Are doctors state actors when they remove a bullet from you and give it to police? What if they make you take drugs to force you to pass the contraband you swallowed? The question is are the doctors joint actors for the police (i.e., proxies for the police interest), or are they doing what they'd normally do?
• Rakas v. IL
  Police search a car in which the defendants are passengers. Motion to suppress rifle and shells. Defendant lacks standing to claim a 4A violation: he didn't own the car.

  4A protects the person, not the place. If you don't have an expectation of privacy in a thing, your rights can't be violated.

• State v. Fillyaw
  Expectation of privacy in your girlfriend's house?

  He has a subjective expectation of privacy, but objectively, does society wish to protect that expectation? Not on these facts, says the court: there'd have to be some indicia of your interests other than just your say-so.

• The test:
  1. Subjectively, do you have an expectation of privacy?
  2. Objectively, is society willing to protect that?
• Interesting point: the subjective part of the test has a disparate impact. A homeless person living in a box may not have the same interests as a homeowner.
• Simmons v. United States
  Very complex facts. One defendant in an armed robbery is trying to exclude evidence, so he testifies to the ownership of the evidence in order to establish standing, then at trial those statements are used against him. So contesting the search means making some inculpatory statements.

  Conflict of 5A and 4A rights! 5A wins: the statements are available for impeachment, but not in the case in chief.

10 November

• Marcus's favorite case of the entire semester: Irvine v. People of CA
  Irvine is suspected of running an illegal gambling operation. They go to his house with a locksmith while he's away, and make a key to his house. Later, they use the key to go into the house, plant a bug in the cieling above the telephone, and sit in a garage nearby to listen. Wasn't working... so they go back, and place another bug. Still no dice. They go a third time, place a third bug, and finally get something. They arrest him for being a bookie. He moves to suppress, and SCOTUS says that Weeks was a federal only holding, and doesn't apply to states.

  So this was before 4A applied to the states; it wasn't till later (Mapp) that 4A got incorporated.

• The "silver platter" doctrine. Often you'd have parallel state and federal investigations, and there'd be sharing of information. The state would obtain evidence unlawfully under state law, but then it would be admitted in federal court, so long as the federal agents weren't involved in the actual collection of the evidence.
• Weeks: 1914
  Illegal lottery in MO, and transporting lottery things in interstate commerce. The state cops arrest Weeks, then while they are holding him they go to his house and collect essentially everything. Then the federal marshals go in and pick up anything else they could grab. Weeks asks to have his property returned. The court says anything not material to the case can be returned.

  This is the holding that says federal officials can't violate 4A: evidence collected illegally by them can't be admitted.

  Notice that this "motion to get property returned" still exists (Rule 41).

• Silverthorn Lumber
  Father and son are indicted. Federal officers go to their office, take all the books and papers and copy them, and give the documents back. Then they use the photos of the evidence to sustain the indictment.

  Justice Holmes: no, no, no. This is a 1.5-page decision. So we're seeing the start of the poisonous tree: not only can you not use improperly obtained evidence itself, but you also can't use the knowledge you gained from that.

• But we don't have incorporation until we get to Mapp
• Mapp
  Single mother in Cleveland. The cops show up, saying they're looking for someone in connection with a bombing (someone tried to blow up Don King, who ran a numbers racket in Cleveland at the time). They demand to be let in. She calls her attorney, who says not without a warrant. They back off, but surveil the house for 3 hours.

  Now 4 more officers (total of 7) show up. They knock, and then break in. They wave a piece of paper at her, she stuffs it down her shirt. They reach in and get it back. They ransack the house: no bomber, but they do find "obscene materials." They arrest her and charge her.

  First and foremost, this is an obscenity case. She's appealing on 1A grounds, not 4A. But the majority is mad about these facts: we can't delegate these matters to the states, because look what you get. Exclusionary rule is incorporated via 14A.

• Cardozo: "the criminal goes free because the constable has blundered." There are social costs to excluding evidence.
• Wong Sun
  2 years after Mapp. Narcotics in San Francisco. Crazy facts.

  In the end, though, basically this is the fruit of the poisonous tree doctrine. Justice Brennan actually uses the phrase in the opinion. And note that we're not just talking about the collection of physical evidence: any illegally obtained evidence taints everything that's derived from it.

  And thus we begin the project of carving out exceptions; you can get to the same evidence via other means, and that would un-taint it.

• The practical point: when filing a motion to suppress, you're not just trying to suppress the primary evidence, but all the derivatives. So all 4A motions cite to Wong Sun and its progeny, pretty much.
• See Madison Muni Ordinances §§ 29.14-15. (for the fact section, not for today's discussion)