Criminal Procedure Outline

Table of Contents

Searches and Seizures 2

Definition of a “search” 2

Definition of a “seizure” 5

Search Warrants and Probable Cause 5

Warrantless Arrests and Searches of Persons 10

Warrantless Entries and Searches of Premises 14

Warrantless Seizures and Searches of Vehicles and Containers 16

Stop and Frisk (Terry stops) 17

Consent Searches 19

Special Needs 21

Remedies (the Exclusionary Rule) 21

The Exclusionary Rule 21

Undercover Investigations 24

Law of Interrogations 24

Doctrinal Foundations 24

The Miranda Framework 25

Due Process and Involuntariness 29

Grand Jury Investigations 30

Doctrinal Foundations and Procedures 30

GJ Procedure and 4th, 5th Amendment Limits 31

The Right to Counsel 35

Right to Appointment of Counsel (Gideon) 35

Ineffective Assistance of Counsel 37

Line-Ups, Show-Ups, and Photo Arrays 38

Sources of Law

1) Potential Sources of Criminal Procedure

a) James Madison, The Federalist Papers, No. 10

2) most US criminal procedure law is judge-made Constitutional law

a) Contrasts with most of rest of world, where statutory rules prevail

b) binding on law enforcement at every level

3) History of rights

a) early common law

i) defendants put on the stand and asked whether he committed crime, jury to decide whether telling the truth

ii) no defense lawyers allowed – thought that they would just mislead the jury

b) around 1700 – right to hire defense attorney (not provided)

c) around 1750 – abuses by English king lead to some reforms

i) Entick v. Carrington – Found a trespass in government officials entering the plaintiff's home and breaking open his boxes and examining his papers, court held that search warrant was not valid without some proof to back it up, i.e., probable cause

d) 1770s – American Revolution, US Constitution

i) Bill of Rights responds directly to English king’s abuses

(1) 4th Am. – no unreasonable searches or seizures; warrants only on probable cause and no general warrants (must be specific)

(2) 5th Am. – cannot be compelled to be a witness against yourself

(3) 6th Am. – trial rights (speedy, jury, etc.); assistance of counsel

e) Late 1800s – Constitution begins to be applied to the states

i) 14th amendment, reconstruction, ect.

f) Early 1900s – police force grows rapidly, becomes professional

g) 1930s-1950s – SCOTUS toying with Due Process Clause to restrict states through the Bill of Rights

i) Powell v. Alabama (1932) – All citizens have 14th Am. DP rights, which is meaningless without a lawyer (can’t say 6th Am. violated directly b/c doesn’t apply to the states)

ii) Palo v. CT (1937) – rights incorporated if “implicit in concept of ordered liberty

iii) Adamson (1947) – “required by immutable principles of justice as conceived by a civilized society”

iv) Duncan (1968) – “fundamental to the scheme of American justice

v) Rochin v. California (1952) – police forcibly pump suspect’s stomach to get the drugs he swallowed; police conduct that “shocks the conscience” violates DP

h) 1960s – Warren Court, procedural revolution

i) 4th Am. incorporated – Wolf v. CO (1949) incorporates, Mapp (1961) recognizes remedy for violation

ii) 5th, 6th Am. incorporated

iii) 2nd Am. Maybe incorporated?

(1) Heller – striking down DC handgun ban; individual right to own handgun in your home for self-defense

(2) McDonald v. City of Chicago (pending)

Searches and Seizures

Definition of a “search”

4) Case Overview:

a) Katz – bugging pay phone (search)

b) Kyllo – thermal imager on home (search)

c) Bond – squeezing duffel bag (search)

d) Dunn – open fields/physical land (not a search)

e) Greenwood – trash left out by curb (not a search)

f) Caballes – dog sniff on car (not a search)

g) Fla. v. Riley – aerial surveillance (not a search)

5) Pre-Katz precedents:

a) 1928 case – wiretapping not a search

b) Ex Parte Jackson – opening your mail is a search

c) Goldman – not a search if govt eavesdrops on neighboring room using detectaphone b/c no actual entry; must enter into “constitutionally protected area” to be a search

d) Silverman – search when govt drills hole in wall to listen through heating duct b/c entering the area

6) General principles:

a) Restricts civil as well as criminal authorities (New Jersey v. T.L.O.)

b) Does NOT protect foreign nationals (United States v. Verdugo-Urquidez)

i) Also not applicable to deported aliens returning to US (United States v. Esparza-Mendoza)

c) Does not protect what person knowingly exposes to the public (Katz)

i) IE outside of car, trash on the street, ect

7) Rule: a search is police activity which violates a reasonable expectation of privacy or constitutes a trespass

a) A “reasonable expectation of privacy” exists where

i) the individual has exhibited an actual expectation of privacy, (subjective)

(1) in fact, this part of the test is largely objective as well

(a) Harlan describes as “exhibited subjective expectation of privacy”

(b) would be very hard for govt. to prove purely subjective

ii) which society is prepared to recognize as reasonable (objective)

(1) if you attempt to keep something hidden from public, expectation of privacy is reasonable (doesn’t matter if it will be practically difficult to keep from public)

(a) government squeezing of duffle bag violates privacy rights (Bond)

(2) private homes have a right to privacy

(a) a thermal imager violates privacy rights in one’s home (Kyllo)

(b) Surveillance from a helicopter of yard at 400 feet is not a search (FL v. Riley)

(3) Curtilage is protected while “open fields” are not

(a) curtilage = area around home that is effectively “inside”

(i) practical necessity b/c otherwise cops could just surround your home

(b) open fields = area physically and practically distinct from the home

(i) proximity to the home

(ii) whether included in enclosure

(iii) nature and uses of area (intimate activities of the home?)

(iv) steps taken to protect from observation

(d) policy: equating privacy with trespass would be too broad

(4) Prison:

(a) There is no right to privacy in prison cells (Hudson v. Palmer)

(b) Strip/body-cavity searches of pretrial detainees after contact visits with outsiders are not unreasonable (Bell v. Wolfish)

(5) Vehicles:

(a) 4th Amendment protects the interior of a car (New York v. Class)

(b) No 4th Amendment search in examining tire treads or taking paint sample from exterior of car (Cardwell v. Lewis)

(d) No 4th Amendment protection in smells outside of car (Caballes) at least by dog

(6) Enhanced senses:

(a) Not a search for police to detect something by one of her natural senses (Mankani (2d Cir. 1984)).

(i) Not a search for police to use a common means of enhancing the senses, e.g., flashlight or binoculars.

(b) Not a search to use drug detection dog (Caballes)

(i) However, may be in context of outside of house (Jardines)

(d) General public use test: Search to use technology not in general use

(i) Use of thermal imager on home is a search, not in general public use (Kyllo)

(7) On the wall vs. off the wall:

(a) Devices that tell you nothing about what’s going on inside the house are ok

(i) Ambient radiation detection device that only measures radiation emanating from a building is NOT a search (Cops in DC case)

(b) If it tells you about things in which you have legitimate expectation of privacy, then it IS a search

(i) Thermal detector telling you about heat inside house IS a search, tells you when lady of the house has her bath (Kyllo)

(8) No legitimate privacy interest in possessing contraband

(a) Binary search doctrine: Searches that can only detect contraband are not searches for 4th Amendment

(i) Dog sniff of car not a search because can only detect drugs (Caballes)

(9) Third parties: No right to privacy in information turned over to third parties

(a) Does not matter if information was given with the expectation that third party would keep it secure

(b) Use of pen register to obtain the numbers dialed from phone did not violate his reasonable expectation of privacy (Smith v. Maryland)

(10) Businesses and commercial premises have a right to privacy (See v. City of Seattle)

b) Trespass test: A trespass is a search where…

i) The police engage in a “physical occupation of private property for the purpose of obtaining information”

(1) Installing GPS tracker on car AND tracking it is a trespass (United States v. Jones)

(2) Tracking the transmission of electronic signals without trespass is subject only to “reasonable expectation of privacy” analysis

(3) Home:

(a) Trespass is that which goes beyond the common law implied license

(i) Bringing a drug dog to the front porch goes beyond the implied license (FL v. Jardines)

(ii) Standard “knock and talk” is not a trespass

(b) Question: can defendant alter scope of license with signs or physical barriers?

8) Kerr’s Four Models of 4th Amendment Analysis

a) probabilistic model

i) looks to chances item discovered would maintain privacy based on prevailing social norms and practices

ii) cases utilizing model:

(1) Bond v. US – squeezing the duffle bag; don’t expect people to feel your luggage in that way

(2) Minnesota v. Olson;

(3) California v. Ciraolo

(4) rejected in Caballes – K9 sniffing drugs in car; legit expectation of privacy is normative question not probability

b) private facts model

i) looks at nature of info obtained, whether private or not

ii) cases utilizing model:

(1) Caballes – K9 sniffing drugs in car; no REP in presence or absence of contraband, info itself not entitled to privacy

(2) United States v. Jacobson;

(3) Dow Chemical Co. v. United States;

(4) United States v. Karo

(5) rejected in Arizona v. Hicks

(a) facts – govt agent going through the apt. where shot had been fired, sees expensive stereo equipment he suspects is stolen; lifts up turntable to see serial number

(b) court holds the serial number is private info

c) positive law model

i) whether govt violated some law outside 4th Am. to get to observe what it observed

ii) cases utilizing model:

(1) FL v. Riley – helicopter legally in airspace, so no REP

(2) Rakas v. Illinois

(3) Dow Chemical Co. (dissent)

(4) rejected in Cal. v. Greenwood – trash case; rejects arg. that state law said privacy interest in trash

d) policy model

i) looks directly to whether govt conduct should be regulated as a matter of public policy – balance pros/cons of regulating and not regulating under 4th Am.

(1) never rejected, although sometimes ignored

ii) cases utilizing model:

iii) Hudson v. Palmer – inmates don’t have legit interest in privacy b/c govt necessity

iv) Kyllo;

v) Smith v. Maryland (dissent)

Micro-Scale / Macro-Scale
Descriptive - / Positive Law / Probabilistic
Normative - / Private Facts / Policy

Definition of a “seizure”

9) Case Overview:

a) Brendlin v. CA – pulling over a car constitutes a seizure of passenger

b) Winston v. Lee – removing bullet from robbery suspect constituted seizure

10) Seizure of property:

a) Rule: police conduct constituted “meaningful interference with possessory interest in individual’s property”

i) Police copying serial numbers of stolen radio equipment is not a seizure (Arizona v. Hicks)

b) can seize something…

i) without searching it

ii) without touching it – ex: govt controlled, taking it out of stream of delivery

11) Seizure of persons:

a) Rule: police “terminated or restrained person’s freedom of movement” “through means intentionally applied”

i) Test when person desires to leave:

(1) whether reasonable person would feel free to leave the scene

(a) Passenger in car which cop pulled over would not feel free to leave the scene (Brendlin)

ii) Test when person does not desire to leave (for reasons unrelated to police presence):

(1) whether a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter

iii) Show of force is sufficient, actual use of force not necessary

iv) Actual submission required:

(1) Without actual submission, merely attempted seizure

(2) Test: “What may amount to submission depends on what a person was doing before the show of authority: a fleeing man is not seized until he is physically overpowered, but one sitting in a chair may submit to authority by not getting up to run away.”

b) Exception:

i) A fleeing suspect is generally not considered seized

Search Warrants and Probable Cause

12) Fourth Amendment: “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”

13) The probable cause test:

a) Search v. arrest

i) for search – to believe that there’s evidence of a crime or contraband

ii) for arrest – to believe person committed an offense

b) Effect of establishing probable cause:

i) 99% of the time, government may conduct a search or seizure if it possesses probable cause

ii) Probable cause makes the search or seizure reasonable in terms of the 4th Amendment

c) Nature of inquiry:

i) fact-intensive inquiry – practical, commonsense assessment of whether evidence is enough

ii) will never be certainty – “fair probability”

iii) Requires a “particularized belief of guilt

(1) Proximity alone is not enough

iv) judge cannot consider the fact that he knows outcome of search

d) Old Test for probable cause (Aguilar-Spinelli):