Criminal Procedure Outline Kerr Spring 2008

Criminal Procedure Outline—Kerr Spring 2008

Intro
Sources of Law
Original Rights against Fed Govt
4th Am—Searches, Seizures, no general warrants
5th Am—not compelled to satisfy against yourself
6th Am—right to counsel (state couldn’t prohibit, but didn’t have to provide)
Against State govts
The Road to incorporation…
14th Am—due process
Palko (’37)—is the right implicit in ordered liberty? (Cardozo)
Adamson (’47)—is the right required by the immutable principles of justice as conceived by a civilized society? (Frankfurter)
Until Incorporation, only Grand Jury right and unanimous jury verdict were considered “fundamental”—selective incorporation
Rochin v. CA (1952)—shocks the conscience test (no involuntary stomach pumping)
some info that Δ was selling narcotics, force open his room door. He’s sitting on bed, some capsules are on nightstand, he swallows them. He’s taken to hospital and has stomach pumped against his will—find he pills were morphine. Ct finds this violates the DP cl b/c it “shocks the conscience.” Like a forced confession. Still good law, but rare after incorporation. But see Briethaupt v. Abrams (1957)—blood sample okay. So bodily extractions are okay as long as they don’t shock the conscience test.
Federal Supervisory Power
McNabb v. US (’43)—Fed govt can limit evidence that is admissible in federal cts—confession obtained after prolonged, unlawful interrogation inadmissible in fed ct.
Paynor (’80)—supervisory power doesn’t allow Ct to exclude evidence when Δ doesn’t have standing to challenge search (IRS stole bank official’s briefcase to get ev against Δ)—SIG: limiting fed supervisory power
Remedies and the Exclusionary Rule
Suppression Remedy, Generally
In Weeks v. US (1914) the S.Ct. adopted the exclusionary rule for federal cts.
created in 1914 when appeals were allowed from criminal convictions
Internationally unique
No exclusionary rule available for:
Grand Jury hearings (US v. Calandra (1974)).
Knock and Announce Violations (Hudson v. Mich)
habeas corpus petitions
this is b/c as long as the prisoner had a full and fair opportunity to assert the violation during his state proceeding, he can’t raise it again
Some Administrative Hearings
IRS tax collecting; INS deportation; parole revocation
Wolf v. Colorado (1944)—Frankfurter says DP Cl incorporates the 4th Am, but not suppression remedy—overruled by Mapp v. Ohio in ‘61
Mapp v. Ohio (1961)—exclusionary rule applied to states
enter Ms. Mapps’s housing looking for someone wanted for bomb questioning. She won’t admit them w/o a warrant—they show her fake warrant. In house-wide search, find obscenityconviction.
HELD: The 4th Am exclusionary remedy is incorporated against the states, so the obscene material that was illegally seized may not be admitted.
Reasons; More states have adopted exclusionary rule—more fundamental; Deterrence; Uniformity
Policy for and against exclusionary rule:
this is not really a fundamental rule—why not let the states experiment to find a workable rule
Possible remedies
police discipline, criminal prosecutionbut conflicting interests of police supervisors and prosecutors, and may not account for officer who acted in good faith but was over-zealous
civil actionbut not economic damage, jury might be biased against criminals, and bivins actions (§ 1983) usually filed only by innocent.
Exclusionary Ruleofficers have an incentive not to violate rights b/c they will lose the case if they do
US v. Leon (1984)—Good Faith Exception
Police executed a search under a warrant with insufficient probable cause (the affidavit in support of the warrant was primarily based on the word of a confidential informant of unproven reliability).
HELD: exclusionary rule does not apply to evidence acquired through an invalid warrant b/c doesn’t serve same deterrent effect.
Rule: Must be (1) objectively reasonable reliance on warrant; and (2) reason to believe that it was properly issued. The evidence will be suppressed when (1) mislead the mag or judge; (2) magistrate abandoned his judicial role (i.e. no longer neutral); (3) affidavit so facially invalid there can be no reasonable reliance.
Hudson v. Michigan (2006)—knock and announce rule (constitutionalized in 1995)—no suppression remedy for violation b/c out of scope with the wrong and no incentive to break this rule.
What is a Search
Olmstead v. US (1928)—bootlegging case
Olmstead was bootlegging alcohol into the US from Canada. Phones were rare at the time, but O had one and the police bugged it and then used that as evidence to convict him.
S.Ct says this is not a search. There was no trespass, as the govt was on a public street, listening to a payphone.
Dissent: You create a virtual sphere of privacy, and gov’t broke into that sphere here.
SIGthrough the 1940s and 50s, the rule is that the 4th Am only protects certain protected areas.
Katz v. US (1967)
Δ convicted of gambling after FBI monitors his conversations on a public phone. They taped a microphone to the roof of the booth.
This is a search. Switch rule so that 4th Am protects people, not places.
Δ had closed himself offhe had an expectation of privacy in the phone booth.
Rely on vital importance of phone booths—how does this interplay with rise of cell phones? No other reasoning to back it up.
Harlan, Concurring,
4th Am began by protecting places (house, etc) b/c that’s where people really expect privacy, but it’s about your expectation.
The test is what a reasonable person expects:
Subjective elementdid person in fact expect privacy
Objective elementdid govt’s conduct violate a reasonable expectation of privacy
What is protected—Katz applied:
Actions or conversations that are open or exposed to the public are not protected, e.g. in your house by the window with the blinds up, or a conversation in a public place.
Content of the trunk of your car—home like so protected
E-mail—like a letter (a virtual home)—protected
Bag checked on flight—there is a border exception for intl travel, but you have some expectation of privacy on domestic flights (e.g. couldn’t determine your computer is a bomb, then search your drive)
GPA/medical records—depends where govt got it (did they find it on the street, or break into your house to get it)4th Am protects against gov’t acts, doesn’t protect the info itself
secluded area on public park—No expectation b/c public property, unless park says you may pitch a tent or something
Office contents—treated somewhat like homes if it’s yours (i.e. you may lock it) but not if it’s open (i.e. cashier)
Prison—Hudson v. Palmer: there are no 4th Am rights in prison. Inmates do have an expectation, but it’s bad policy.
Kyllo—thermal imaging is a search
thermal imaging device used to find Δ’s heat lamps used for growing marijuana. Thermal imaging devices are not in general use, so they are protected against.
Scalia’s majority approach doesn’t apply the reasonable expectation of privacy test (thinks it’s circular)
His rule: if a device obtains information about the interior of the home that would otherwise be obtained inside, then it is a search, unless it is with an instrument that is in public use (like glasses or a flashlight).
Dunn—Open Fields Test
There was physical trespass onto Dunn’s land—he owned a barn, and there was an area that was fenced off around that. The police climbed over a few fences to have a look, but did not go over the fence that surrounded his house. They peer over the fence to look at but not enter the barn. The barn is 50’ from house.
The police did not enter the “curtilage” of the housearea around the house that is like an aura. It only extends so far, and the area beyond the curtilage is the “open field”—majority says that the police were in an open field, which 4th Am doesn’t protect
4 factor test:
proximity to home
whether the area is within an enclosure around the home
the nature of the uses of the area
steps taken by the resident to keep the area private
Note: this test only works with physical land, and includes places where ppl normally go, e.g. govt can walk up driveways, or places you might expect a visitor to go.
Brennan, Dissent: (fill this in)
NOTE: reasonable expectation of privacy test may defeat this, as in CA v. Ciraolo (’86) and Fla v. Riley (’89) when there was no search of suspect’s fenced in backyard (in his curtilage) or partially covered greenhouse because it was done by a naked eye observation from an aircraft flying at legal heights.
Greenwood—going through public trash okay
police look through Δ’s trash.
There is protection for trash in your home, but not in the dump (1st Cir allows them to reassemble shredded documents)
Caballes—drug dogs okay
Car is by side of the road, dog is brought around the car, and signals that he smells drugs.
This is not a search. Dogs only sign when they smell drugs, but you don’t have a reasonable expectation of privacy in possessing drugs (seems circular)
Souter, Dissent: a dog is like a thermo-imaging device, and is they are not in common use
Riley—aerial surveillance okay
flew a helicopter over Δ’s house, say he was growing drugs in his greenhouse. Cops knew they couldn’t get around the Open Fields test w/o the helicopter.
White’s plurality—this is not a search—helicopters are not rare and the helicopter was in public airspace (not too low) so broke no laws. The cops are not required to avert their gaze.
O’Connor, Concurrence—helicopters are common, so it’s okay
Another concurrence—helicopters are uncommon
Tests to determine whether there’s a “reasonable expectation of privacy” (from Kerr’s law review article)
Probabilistic—if the odds are high that other people or the cops would not have pried into a person’s affairs and discovered the information, that person had a reasonable expectation of privacy; as the odds decrease, it is less likely that there is a reasonable expectation (e.g. Bond v. US, where it was a search when agents squeezed the luggage on the bus and discovered a brick of drugs, because a person would expect his luggage to be handled a normal way, not squeezed like that)
Private Facts—if the information obtained is private and worth of constitutional protection, it’s a search; the focus is on the information obtained, rather than the method (E.g. not a search when, after white powder seeps out of a FedEx box on its way to being delivered, the FBI tests it to discover it’s cocainethis is because if it was coke, that is never a private fact, and if it’s not coke, no other information is revealed. Since the test can reveal evidence of a crime and nothing else, it doesn’t violate any expectation of privacy.
Positive law—if the government broke a law (other than the 4th Am) in obtaining the information, it’s a search. Forcus on whether the information was available to the general public—if a member of the public could have obtained it legally, then it’s not a search when the government gets it (e.g. Florida v. Riley, where govt didn’t break FAA laws by flying 400’ in the air.
Policy—a reasonable expectation of privacy exists when it should, because consequences would be bad otherwise (more common with the S.Ct than with lower cts)
What is a Seizure
A seizure is any meaningful interference with a possessory interest in an item
Cf with search—here it’s about taking control of items, whereas searches are about gaining access or information.
Seizure of People
Brendlin v. CA (2007)—officer pulls over a car, mistakenly believing that Δ committed a traffic violation, officer recognizes him as a parole violator. Δ argues that he was seized at the moment the car was pulled over, and the evidence should be suppressed.
Ct (unanimous) says this was an illegal seizure
Test: seizures occurs when:
Force or a show of authority is used to restrain a person’s movement; OR
a reasonable person wouldn’t feel free to terminate an encounter with the police and leave
Note: control is they key—societal understanding a cop has control over the driver, passengers, car, contents, etc when he pulls the car over.
Probable Cause
Did the officer know that quantity of facts and circumstances that would lead a reasonable person to conclude that the individual in question committed a crime (for an arrest) or that specific items related to criminal activity will be found at the particular place (in the case of a search)?
Generally
If the gov’t has Probable Cause (PC) they can search, seize, arrest, etc. In some cases they need PC and a warrant.
PC makes the searches and seizures reasonable
probability ≠ PC (e.g. if 80% of law students do coke, there’s still no PC against 1 law student w/o individualized evidence)
Search warrants are time-sensitive—must be sure they aren’t “stale”
Running from the police may be considered as a factor in finding PC, but on its own is insufficient, Wong Son (police were plain clothed), though it may create reasonable suspicion, Wardlow.
Evidence may be viewed as by a reasonable officer. Gates, Kincaid (7th Cir ’00)
Spinelli (old, test overruled by Gates)
S was convicted of traveling across state limes for gambling. FBI said they had cause b/c FBI followed him, he crossed a bridge and went to an apartment owned by Hogen. The apartment has 2 phone numbers listed under different names, and Hogen is known as a bookie.
S.Ct say there is no probable cause: There is no evidence that the informant was (1) reliable and (2) truthful.
anyone can claim that X is known as a bookie, and FBI got this infor from an anonymous tip—don’t know how reliable
Ill v. Gates (1983)
Δ charged with possession of drugs after someone mails an anon tip to the police. Police confirm that Gates exists and lives at stated address, and that Mr. Gates has the state plain ticket. Gates does fly to Fla, goes to motel room registered under wife’s name, and the next morning, Mr. Gates and a woman drive north in a car w/ Ill. plates. (all per the letter). Cops search the car in Ill and fine 350 lbs of weed.
Police had PC—overrule Spinelli test in favor of a totality of the circumstances test: New test is whether there is a practical common sense judgment that there is a fair probability that evidence is there
conclusory statements are not enough
thee must be enough information for the judge to make the call
Note: application is the same as the as Spinelli basically
Pringle
cops pull over a car w/ 3 passengers at 3am in Baltimore—Pringle is sitting in the passenger seat. The officer notices a wad of money in the glove compartment, so searches and finds 5 baggies of cocaine behind the armrest in the backseat. Passengers don’t say anything about who owns what, so police arrest all three. Pringle confesses that the coke was his alone, is charged with possession and intent to distribute. He argues that there was no probable cause to arrest him b/c he was a passenger
HELD: There was PC against all 3 passengers because a reasonably inference could be made that any or all had knowledge of and control over the cocaine. Probable cause is not “undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seize another.”
Note:
State law determines what Probably Cause is, b/c PC relates to the crime.
PS is the same level of stringency regardless of the severity of the crime.
Search Warrants and Plain View
Warrants
Generally
Say where you can go and what you can get (person or thing)
Required by the Const as a reaction to the King’s general warrants
Limitations/Requirements
4th Am—warrant must describe with particularity the place and things seized.
Specificity—
for a locationusually a house is specific, sometimes multiple apartments, but e.g. an apartment building with 10 apartments is too vague
for the evidence to be seizedpolice aren’t sure what they are looking for, name things that will possibly be there. E.g. for a homicide, name fire arms, letters discussing revenge motive, etc., but must be more specific than “evidence of crime”
Maryland v. Garrison (1987)
warrant authorized search of McWebb and his 3d floor apartment. Officers did not know that the 3d floor was split into 2 apartments, and without realizing it the officers searched Garrison’s apartment, and found contraband.
HELD: Evidence against Garrison is admissible b/c there is some latitude for objectively understandable and reasonable mistakes by the police.
E.G. Duke rape case
Even though the story was fabricated, the stripper’s story created Prob Cause. So in the warrant the police listed clothing related to suspects had victim, documents identifying the suspects, documents of ownership of residence, pictures, cameras or video devices that could take pictures, currency up to $400 or any portion thereof, including all $20 bills, electronic data processing or documents about the offense (can take computers away to search b/c have too much information)
SIG: broad warrants are okay—particularity of place is more important than particularity of evidence to be seized
10 day rule
gov’t has 10 days to execute a warrant (from C/L, and in FRCP 41)
day/nighttime warrants
usually have to show a reason why you have to execute a warrant at night, e.g. if Δ carried the evidence around with him.