Criminal Procedure - Outline Part 2

• Unbugged Agent: agents who testify at trial from recollection as to the incriminating statements made to them
• Summary: the use of unbugged agents involves no intrusion by the government but only “misplaced trust” by the suspect in the agent or informant

Lewis v. US (1966) → no 4^th Amendment violation b/c the defendant “invited the undercover agent to his home for the specific purpose of executing a felonious sale of narcotics,” as well as the agent did not “see, hear, or take anything that was not contemplated and in fact intended by petitioner as a necessary part of his illegal business.”

• The Court held that the defendant WAIVED his 4^th Amendment rights in his home since he had converted it to a “commercial center”

Hoffa v. US (1966) → one of Hoffa’s Teamsters-turned-informant regularly overheard conversations concerning Hoffa’s plan to bribe jurors. Since Hoffa’s statements were totally voluntary, no 4^th Amendment search or seizure occurred and Hoffa’s misplaced trust was his own fault

US v. White (1971) → NO 4^th Amendment right was involved because of the following reasoning:

• NO Expectation of Privacy: when a person misplaces his trust, and makes incriminating statements to a bugged OR unbugged informer, he does not have any “justifiable expectation of privacy” which has been violated; there is no 4^th Amendment protection for “wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.”
• White Erodes the Katz “Justifiable Reliance” Concept → White necessarily assumes that a person cannot “justifiably” trust and talk to anyone, regardless of how close. A new test might be based on a “possible risk of disclosure.”

1. White (1971): Not search.
2. On Lee (1952): Nearly identical facts of White. No trespass when criminal informant entered.
3. Lopez (1963): False friend “wired.” No 4A violation for undercover to secretly record D using a hidden device. Reliable evidence. No unlawful physical invasion (trespass theory).
4. Hoffa (1966): False Friend/Undercover Agent. NOT search. 4A provides no protection for “a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.” Assumption of the risk. “It is the kind of risk we necessarily assume when we speak.”

1. Gov't eavesdrops on conversation between A and B
   • Katz - phone booth wired
     • Held: Search without warrant. Inadmissible evidence.
2. Gov't participates in the conversation itself (false friend or undercover agent)
   • Hoffa - friend is actually gov't informant. NOT “search”
   • Lewis - gov't send secret agent who conceals his identity to make a purchase of narcotics
3. False friend tapes conversation or is "wired"
   • Lopez - agent carries electronic equipment to record Δ's words. No physical invasion.
   • On Lee - radio equipment simultaneously transmits conversations to recording equipment located elsewhere or other agents monitoring the transmitting frequency
     • Held: testimony admissible
   • White - friend turned gov't informant transmitting conversations
     • Held: testimony admissible

Smith v. Maryland (1979) → an individual has no legitimate expectation of privacy in the numbers dialed on his telephone b/c he voluntarily conveys those numbers to the telephone company when he uses the telephone.

Rule → when an individual voluntarily transfers info to a 3^rd party, the transferor enjoys no further 4^th Amendment protection as to that information – government may DEMAND that the 3^rd party turn the info over, even if the government not only lacks probable cause or a warrant, but doesn’t even have reasonable grounds for suspecting that the info may be relevant to a criminal investigation

US v. Miller → “The 4^th Amendment does NOT prohibit the obtaining of info voluntarily revealed to a 3^rd party and conveyed by him to government authorities, even if that info is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the 3^rd party will not be betrayed.”

• Any info you voluntarily convey to a 3^rd party; you no longer have reasonable expectation of privacy
• Miller - don’t need warrant to get everything from bank because you voluntarily gave info to bank
  • US v. Miller (1976) → when the customer of a bank gives banking-related info to the bank in furtherance of the relationship, the customer will be found to have no reasonable expectation of privacy in the material, i.e., the government MAY subpoena that material from the bank without showing probable cause that the material is evidence of crime
    • The subpoena does NOT even constitute a “search” for purposes of the account-holder’s 4^th Amendment rights
    • A person has NO reasonable expectation of privacy w/ respect to the document b/c “the depositor takes the risk, in revealing his affairs to another, that the info will be conveyed by that person to the government.”
• Facebook - gov’t gathering huge amount of personal data
  • Ex. facial recognition, likes, age… if facebook has all of this info, gov’t can have all this info.