Criminal Procedure for the Criminal Justice Professional 10th Edition

1. Criminal Procedure for the Criminal Justice Professional 10th Edition John N. Ferdico Henry F. Fradella Christopher Totten

2. Administrative Searches,Special Needs Searches, andElectronic Surveillance Chapter 5

3. Protecting Public Safety Certain governmental activities aimed at protecting public health, safety, and welfare have a long history of regulatory enforcement. Regulatory enforcement is quite different from criminal investigation. The usual strictures of the Fourth Amendment have been modified to allow for more flexible enforcement of public safety laws.

4. Administrative Search Warrants

5. Administrative Searches An administrative search is a routine inspection of a home or business by governmental authorities responsible for determining compliance with various statutes and regulations. It seeks to enforce things like fire, health, safety, and housing codes and licensing provisions. An administrative search ordinarily does not result in a criminal prosecution.

6. Special Warrant Requirements for Administrative Searches Administrative searches differ in nature and purpose from criminal searches; therefore, the probable cause standard for administrative searches differs in nature and is less stringent than the standard for criminal searches.

7. Exceptions to Administrative Warrant Requirements Warrantless inspections of licensed and closely regulated enterprises are reasonable if: A “substantial” government interest supports the regulatory scheme under which the inspection is made Warrantless inspections are necessary to further the regulatory scheme The regulatory statute provides a constitutionally adequate substitute for a warrant by advising the owner of commercial premises that the search is being made pursuant to the law, has a properly defined scope, and limits the discretion of the inspecting officers.

8. Distinguishing Between Administrative and Criminal Searches The line between an administrative and a criminal search sometimes blurs. Depends on investigative purposes and privacy expectations. Any criminal evidence found during a valid administrative search may be seized. When an administrative search begins to take on the characteristics of a criminal search, the stricter standards applicable to criminal searches apply. If these standards are not satisfied, any evidence obtained is inadmissible in a criminal prosecution.

9. Special Needs Searches

10. The Special Needs Doctrine An exception to the warrant and probable cause requirements of the Fourth Amendment exists where “special needs” of the government, beyond the normal need for law enforcement gathering evidence for crime investigation, make the warrant and probable cause requirements impracticable.

11. Evaluating “Reasonableness” “Special needs” exceptions are evaluated under the “reasonableness” standard of the Fourth Amendment, by balancing The weight and immediacy of the government interest The nature of the privacy interest allegedly compromised by the search The character of the intrusion imposed by the search The efficacy of the search in advancing the government interest.

12. Searches of Governmental Employees “Special needs" may justify a warrantless search of a public employee’s office by the employee’s supervisor. For searches conducted by a public employer, the invasion of the employee’s legitimate expectations of privacy must be balanced against the government’s need for supervision, control, and the efficient operation of the workplace. Determined on a case-by-case basis

13. Governmental Drug Testing Public safety is a special need. People who work in heavily regulated industries have a lesser expectation of privacy. Drug testing in the interest of special needs is different than searches done for purposes of law enforcement.

14. Searches of Probationers and Parolees Searches of probationers and parolees are based on the system’s necessity for non-adversarial supervision their population. Conducting such a search is a “special need” justifying lessened Fourth Amendment protection for the probationer. The warrant requirement is impracticable. The probable cause standard for searching is replaced by a "reasonable grounds" standard.

15. Searches of Elementary and High-School Students The Fourth Amendment applies, but the warrant requirement does not. Determining the reasonableness of any search involves an inquiry into: whether the action was justified at its inception whether the search as actually conducted was reasonably related in scope to the circumstances that justified the interference in the first place. Random, suspicionless drug testing of students participating in extracurricular activities is reasonable.

16. Searches of College Students The law of search and seizure in the college and university setting is inconsistent. They depend on: Whether the search was initiated by police or college employees Whether it is a public or private college or university

17. Border Searches There is no reasonable expectation of privacy at any of the U.S. borders or their functional equivalents. Border searches are a part of maintaining the sovereignty of the country by controlling the flow of both people and articles into or out of the country and play a vital role in maintaining national security. More invasive searches of people—such as strip searches, body cavity searches, or extended periods of detention—require reasonable suspicion, although they do not require a warrant.

18. Other Special Needs Searches Other searches that may fall within the realm of special-needs searches are: Airport and courthouse searches DNA searches Public transit system searches

19. Electronic Surveillance Warrants

20. Electronic Surveillance Electronic surveillance refers to searches conducted using wiretaps, bugs, or other devices to overhear conversations or obtain other kinds of information. They are a relatively recent concern of criminal and constitutional law. The Constitution gives little guidance for balancing privacy interests against the need for effective law enforcement in the area of electronic surveillance.

21. Early Developments in Electronic Interceptions Law The U.S. Supreme Court’s first electronic eavesdropping case was Olmstead v. United States (1928). It held that wiretapping was not covered by the Fourth Amendment because a conversation was not tangible. The focus changed from a “property” approach to a “privacy” approach in 1967, with Katz v. United States. Electronic surveillance does fall within the realm of the Fourth Amendment

22. Omnibus Crime Control and Safe Streets Act of 1968 Title III of the Omnibus Crime Control and Safe Streets Act attempts to balance the need to use electronic surveillance for effective law enforcement against the need to protect individuals’ privacy rights through judicial supervision of all aspects of electronic surveillance and establishment of warrant procedures.

23. Title III and its Applicability to the States Title III specifically authorizes state law enforcement officials to apply for, obtain, and execute orders authorizing or approving the interception of wire, oral, or electronic communications. The procedures are similar to those governing federal interception orders. The state procedure must also be authorized by a separate state statute.

24. Suppression of Illegally Obtained Interceptions Title III provides its own statutory exclusionary rule that applies to oral and wire communications that were illegally intercepted by government actors as well as by private persons. Does not apply to illegally intercepted electronic communications, the remedies for which include criminal penalties and civil suits Any aggrieved person may move to suppress evidence in either a state or federal proceeding.

25. Exemptions from Title III Types of electronic communications are not covered by Title III include: Cases of willful and voluntary disclosure Certain cases of eavesdropping Consent surveillance Provider exception Computer trespasser exception Public access exception Pen registers, trap and trace devices, and tracking devices E-mail, voicemail, and video surveillance

26. The Foreign Intelligence Surveillance Act (FISA) of 1978 FISA authorizes and regulates the electronic surveillance of foreign powers and their agents within the United States. FISA: Does not regulate U.S. governmental intelligence operations outside of the United States. Permits federal agents to conduct electronic surveillance and physical searches for national defense purposes. Authorizes physical searches of "premises, information, material, or property used exclusively by, or under the open and exclusive control of, a foreign power or powers."

27. Approving FISA Applications FISA applications are reviewed by the Foreign Intelligence Surveillance Court (FISC). The President, through the U.S. Attorney General, is also authorized to approve FISA applications. Challenges to FISA applications are done in Franks proceedings.