CRIMINAL PROCEDURE – Cheh – Fall 2011

I.  Background

  1. The Civil/Criminal Distinction: Heightened procedural protections for criminal cases
  2. Borderline cases: Mimic criminal punishment, serve the same objectives as the criminal law, e.g. deterrence.
  3. E.g. Regulatory statues that require self reporting violate the 5A right against self incrimination if they are criminal
  4. E.g. Involuntary commitment of people who committed sex crimes after they have served the sentences for those crimes violates the Article I, Section 9 prohibition on ex post facto laws if the commitment is criminal
  5. Courts give deference to the legislature on whether a law is civil or criminal
  6. Crim Pro as a Body of Con Law: Majority of the provisions of the Bill of Rights have been incorporated against the states. So:
  7. American criminal procedure system is largely administered by the Supreme Court.
  8. State and local jurisdictions do not have flexibility to construct/administer different systems
  9. No “laboratories of democracy”
  10. Rule on Retroactivity: A decision applies retroactively to cases that are pending in the judicial system and have not been finally decided by a denial of a writ of certiorari.
  11. Habeas cases: new decisions generally do not apply retroactively to them
  12. Two Models for Criminal Procedure Systems:
  13. The Crime Control Model: Focus on factual guilt and achieving factually reliable convictions.
  14. Justice is: when guilty people are convicted
  15. Favors: flexibility for police and prosecutors to gather evidence
  16. Favors: efficiently identifying possible criminals and processing them through the system quickly
  17. Favors: finality
  18. Disfavors: multiple filters or formal proceedings
  19. Disfavors: Multiple stages of post-conviction review
  20. The Presumption of Guilt: FACTUAL guilt: at some point, the investigative record should reveal that the accused is most likely guilty
  21. The Due Process Model: Focus on legal guilt and demonstrating the legitimacy of the system—that it treats people fairly and produces reliable results
  22. Justice is: when guilty people are convicted after a correct process
  23. Favors: skepticism about the facts, and about whether true facts can ever be ascertained
  24. Favors: procedural protections for the accused
  25. Favors: questions about the criminal law’s impact on those who live on the margins of society, questions about the state’s use of punishment against its citizens
  26. Favors: skepticism about authorities in the criminal system and their capacity for following proper procedures
  27. Disfavors: over-emphasis on efficiency or factual guilt
  28. The Presumption of Innocence: LEGAL innocence: the state must follow proper procedures in proving its case against the accused beyond a reasonable doubt

II.  FOURTH AMENDMENT: SEARCHES AND SEIZURES:

  1. The Reasonableness Clause: The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and
  2. What searches are reasonable?
  3. Probable cause defines the essence of reasonableness
  4. Having a warrant was assumed to be part of the requirement of reasonableness, but this is subject to many exception.
  5. The Warrant Clause: No warrants shall issue, but upon probable case, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
  6. Probable Cause for Searches: A fair probability* that a crime was committed, and that the evidence of that crime can be found in a particular place.
  7. Probable Cause for Seizures: A fair probability* that a crime was committed, and that the person sought committed it.
  8. *A fair probability need not be more probable than not.
  9. *But, a fair probability must be more than mere speculation

c.  A Framework for Thinking about 4A:

  1. STEP ONE: What is protected?/(Is this a search or seizure?)
  2. If no, 4A does not apply
  3. If 4A does not apply, no restrictions of government action
  4. If yes, 4A does apply
  5. If 4A does apply, the government must act reasonably
  6. STEP TWO: What level of suspicion justifies the intrusion?
  7. E.g. Probable Cause? Reasonable Suspicion?
  8. STEP THREE: What procedures must be followed?
  9. E.g. Should a warrant be obtained?
  10. STEP FOUR: What is the proper scope for the government’s actions?
  11. E.g. Was the scope of the search appropriate? Was the conduct of the arresting officers appropriate?
  12. POSSIBLE STEP FIVE: If a violation occurs: What is the proper remedy for the 4A violation?
  13. E.g. Exclusionary rule, civil suits for violations
  14. STEP ONE: What is protected?/Is this a search or seizure?
  15. Requirement of state action: Burdeau v. McDowell (1921): A search or seizure conducted by a private citizen is not a search or seizure within the meaning of the 4A
  16. Katz v. United States (1967): Placing an electronic listening and recording device on the outside of a public phone booth is a search
  17. Search did not comply with constitutional standards: Although search was justified by probable cause and police acted with restraint, government was required to obtain a warrant in advance
  18. Adequacy of the evidence should be judged by a neutral decision maker and not by the police themselves
  19. Danger of looking backwards and relying on evidence found during search to bolster evidence initially justifying search
  20. Magistrate should set out the scope of police action in advance, rather than relying on police to exercise their own restraint
  21. TEST: from Harlan’s concurrence:
  22. 1) Did the person manifest a subjective expectation of privacy?
  23. 2) Is that expectation one that society is prepared to recognize as reasonable?
  24. N.B. As a society, we can be gradually conditioned to have a lesser expectation of privacy.
  25. Related Issues: NO SEARCH
  26. Manifesting a Subjective Expectation of Privacy vs. Abandonment: You no longer have an expectation of privacy in an area/thing that you abandon
  27. E.g. denying ownership in the face of police inquiries
  28. Open Fields: You assume the risk that people will wander onto your property, even in violation of state trespass laws (including the police)
  29. Oliver v. United States (1984): Oliver did not have a reasonable expectation of privacy in the field of marijuana approximately a mile from his house, despite erecting a locked gate with a “No Trespassing” sign around the field
  30. No reasonable expectation of privacy even if the police violate state trespass laws
  31. Society does not recognize a reasonable expectation of privacy in open fields
  32. But: society recognizes a reasonable expectation of privacy in curtilage:
  33. Proximity of area to home?
  34. Is area included within enclosure surrounding the home?
  35. Uses to which area is put?
  36. Steps take by resident to protect area from observation by passersby?
  37. United States v. Dunn (1987): A barn 50 yards from a fence around a residence is outside the curtilage. No reasonable expectation of privacy, despite outer fence around property, interior barbed wire fences.
  38. But: Visually inspecting property inside the curtilage from a vantage point outside the curtilage is NOT a search. United States v. Hatfield (10th Cir. 2003).
  39. Trash: You assume the risk that the public will get into your garbage
  40. California v. Greenwood (1988): Society does not recognize reasonable expectation of privacy in property to which public has access, even when Greenwood was required to set out garbage and police engaged in sustained, targeted search of garbage.
  41. N.B. This ruling not based on abandonment of trash because no showing in case of voluntary relinquishment
  42. Aerial Surveillance: You assume the risk that members of the public flying in public airspace can observe your property
  43. California v. Ciraolo (1986): No reasonable expectation of privacy from aerial observation of back yard containing marijuana from an altitude of 1,000 feet, despite two fences to obscure view on the ground
  44. Dow Chemical Co. v. United States (1986): No reasonable expectation of privacy despite extensive measures to bar views of plant from the ground, use of enhanced photography with specialized cameras
  45. Florida v. Reilly (1989): White Plurality: No law prohibiting public from hovering 400 feet over property in helicopter, so no reasonable expectation of privacy
  46. O’Connor Concurrence: Proper test for reasonableness of expectation of privacy:
  47. Does the public ordinarily have access to the information sought by the police?
  48. Not, is it legally possible for public to obtain the information.
  49. Transmitting information to third parties:
  50. To Friends and Associates: United States v White (1971): You voluntarily transfer information to them and assume the risk that a person you talk to will betray you
  51. False friends/undercover officers
  52. Informants or coconspirators who wear wires/snitches
  53. To Financial Institution: Financial records: California Bankers Ass’n v. Shultz (1974): You voluntarily transfer information to the bank about your transactions
  54. To Telephone Company: Pen registers (record numbers called from telephone): Smith v. Maryland (1979): You voluntarily transfer information to the phone company about the numbers you call
  55. Here, lack of 4A protection from use of pen registers leads to greater statutory limits on use of pen registers by Congress (could come from state legislatures)
  56. Related Issues: SEARCH
  57. Manipulating Bags in Public Transit: Bond v. United States (2000): While other passengers/employees might handle/move Bond’s canvas bag in overhead compartment of bus, officer’s exploratory manipulation/squeezing of bag exceeded this casual contact and was a search
  58. Related Issues: Dogs:
  59. Canine sniffs of closed luggage: United States v. Place (1983): Not searches:
  60. No reasonable expectation of privacy in an illegal activity
  61. Sniff discloses nothing other than presence or absence of contraband narcotics
  62. Privacy interest in legitimate private contents of luggage not disturbed
  63. BUT, opening of luggage after a positive alert by a dog is a search
  64. Could uncover legitimate private activity
  65. Must have magistrate assess whether positive alert, alone or with other evidence, constitutes probable cause (e.g. reliable track record of dog)
  66. But dog tearing into package was a natural occurrence, and not a search, absent an police misconduct in causing the dog’s action. United States v. Lyons (8th Cir. 1992)
  67. Canine sniffs of places:
  68. Outside the home: Search. Greater expectation of privacy in the home. United States v. Thomas (2nd Cir. 1985)
  69. Outside an Amtrak sleeping compartment: Not a search. United States v. Colyer (DC Cir. 1989)
  70. Canine sniffs of cars during traffic stops: Illinois v. Caballes (2005): Not a search. Driver was lawfully stopped for traffic violation when one officer processed ticket and other officer walked dog around car.
  71. No reasonable expectation of privacy in possession of contraband
  72. Dog sniff did not change nature of otherwise lawful stop
  73. Related Issues: Testing for Drugs:
  74. Testing a substance: Not a search: United States v. Jacobsen (1984): Chemical test that reveals whether or not a substance obtained from a package opened by FedEx employees is cocaine does not compromise any legitimate interest in privacy
  75. Testing a person’s urine: Search: Skinner v. Railway Labor Executives Ass’n (1989):
  76. Testing of urine samples may uncover innocent secret information, e.g. pregnancy, use of prescription drugs
  77. Process of collecting urine samples is intrusive and embarrassing
  78. Related Issues: Sensory Enhancement Devices/Other Technology:
  79. Thermal Detection Devices: Search: Kyllo v. United States (2001): Using thermal imaging device aimed at private home from a public street to detect relative amounts of heat within the home is a search
  80. Obtaining information about the interior of the home that would not otherwise be knowable by using sense-enhancing technology is a search where the technology is not in general public use
  81. Special protection for the home: all details revealed are intimate details
  82. Beepers (and GPS) to Track Public Movements: No Search: United States v. Knotts (1983): No reasonable expectation of privacy in public movements
  83. But, Beepers to track property in the home: Search: United States v. Karo (1984): Reasonable expectation of privacy in the home
  84. Flashlights: No search: Texas v. Brown (1983): Can use artificial means to illuminate the interior of a darkened car
  85. STEPS TWO THRU FOUR: What level of suspicion justifies the intrusion? What procedures must be followed? What is the proper scope for the government’s actions?
  86. Establishing Probable Cause for a Search:
  87. Where officer avers firsthand knowledge of facts: Magistrate will inquire whether sworn facts establish PC
  88. Where officer relies on a paid informant or snitch, or an anonymous informant* for some/all information:
  89. *These cases do not apply where a crime victim or eyewitness reports a crime
  90. Aguilar v. Texas (1964): Insufficient for police officers to swear that they had reliable information from a credible person and the believe narcotics were stored on the described premises
  91. Warrant application must set forth underlying circumstances to allow magistrate to independently judge validity of officers’ conclusion that narcotics are on premises
  92. Must include FACTS, not merely conclusion
  93. Officers must support claim that informant is credible/his information is reliable
  94. Draper v. United States (1959): Warrantless arrest case, but demonstrates that detailed information from informant, some of which was independently corroborated by the police, can be basis for probable cause
  95. Matters that informant gave predictive information about a future event, not merely descriptive information about current event
  96. Gives rise to assumption that informant has intimate knowledge of target’s plans
  97. Spinelli v. United States (1969): Not sufficient to say that informant knows that Spinelli is a bookmaker, even when there is some corroboration, e.g. that he has two phones with particular numbers.
  98. TWO-PRONGED TEST:
  99. Reliability: Who is the source of the information? Is the source reliable?
  100. If source is not known to be reliable, police may demonstrate reliability by corroborating details provided by the informant
  101. Credibility/Basis of Information: What are the bases and details of the source’s knowledge?
  102. If the basis is unclear, it may be sufficient that the information is so detailed that it could only have come from personal observation
  103. If information provided by informant falls short of PC, police can gather other information to include in warrant application
  104. Illinois v. Gates (1983): Magistrate must make a common sense decision about the existence of PC, based on the totality of the circumstances:
  105. TOTALITY OF THE CIRCUMSTANCES FACTORS:
  106. Nature of the information?
  107. Opportunity for the police to see or hear the matter reported?
  108. Veracity of the informant? Basis of the informant’s knowledge?*
  109. *Spinelli Test
  110. Independent verification of matters reported through police investigation?
  111. Corroboration need not be as extensive as contemplated in Spinelli
  112. Standard of review of magistrate’s determination of PC: Was there a substantial basis for concluding PC existed?
  113. Establishing Probable Cause for an Arrest: PC is ALWAYS Required for an Arrest:
  114. Probable Cause to Arrest: United States v.