CRIMINAL PROCEDURE I
Fall 2006, Professor Nowlin
KEY:
SW—Search Warrant
AW—Arrest Warrant
QOS—Quantum of suspicion
PC—Probable Cause
RS—Reasonable Suspicion
WE—warrant exception
XR—Exclusionary Rule
TC—Totality of the Circumstances
V—Veracity
BOK—Basis of Knowledge
SIA—search incident to arrest
SOP—Standard operating procedures
CS—Consent Search
Introduction:
4th Amendment—no unreasonable search & seizure, no warrants w/o PC
5th Amendment (self incrimination clause)
6th Amendment—Right to counsel
14th Amendment—due process clause
Packer: The Courts, Police & the rest of us
Crime control vs. Due process; two ends of the spectrum. The more rights people have, the harder it is to control crime. The more we control crime, the harder it is for people to have those rights.
The Constitution, Declaration, Due Process & Crime Control:
Lincoln’s idea is that the principles & rights of the Dec. of Independence are the “picture” the Constitution is the frame that accents & preserves it.
Government is created to control crime, but once we’ve done that we must protect our rights from government. CC protects natural rights from private violence. DP protects individual rights from government’s tyranny.
Judicial Activism/Restraint:
Restraint: stick close to the text & history, and defer to elected officials. Courts should do less rather than more. Narrow readings of the constitution opposed to broad readings. Majority rule idea is the emphasis.
Activists: Changes in values & facts influence policy decisions. Don’t have to defer to elected officials. Minority rights are emphasized.
1960s—criminal procedure explodes onto the scene based on new interpretations of the 4/5/6/14 amendments. Warren court sat at the time, Warren court was an activist, DP court.
1980s—Berger & Rehnquist courts, much more in the restraint & CC camp. Practically none of the Warren court’s major decisions are overturned. We are given narrowing of the interpretation of the Warren court’s doctrine.
2006—The split will likely be a 5-4 split favoring R/CC.
Limits on SCOTUS creating a criminal procedure code: Why can’t it create a-
Comprehensive code—court is limited to a passive role, it is limited to the cases that are brought before it. The court is too busy to take all criminal procedure cases.
Coherent code—different members of the court, complex fact situations, court’s membership changes, which leads to the court’s policy shifting from one end to the other. This means that cases don’t end up reconciling.
Implementation of the code—(Dershowitz, The Best Defense)
The more rigorously DP procedures are, the likelihood of compliance drops. Courts may set out the rules, but police & prosecutors are resistant to change.
Tips for reading cases:
1. Learn major case names, and note cases we talk about
2. Carefully read separate opinions (concurrence, dissents)
3. Keep policy shifts in mind
4. Keep in mind Brennan’s Rule of 5—5 justices do whatever they want.
8/23/06
1. Bill of Rights limits the federal government, not the states. The 14th amendment limits the state governments.
2. Doctrine of Incorporation: Applying the B/R to the states via 14th Amendment
a. Duncan vs. LA:
i. Total Incorporation (All B/R are incorporated)
1. Justice Black’s approach: A privilege and immunity of being a US Citizen should be the rights in the B/R. The intent of the P&I clause was to incorporate everything.
ii. Pseudo-Incorporation (fundamental fairness)
1. What rights are fundamental or essential to a fair trial? Rights are “created” and incorporated that may be identical to those in the B/R. None of the B/R are actually incorporated, however.
iii. Selective Incorporation (selected provisions are incorporated)
1. The test for incorporation is fundamental fairness. It is in or out based on its fundamentality to fairness. Is it essential? (Justice White’s approach)
iv. Selective incorporation seems to win because it is sort of a compromise of total/pseudo incorporation. Most B/R amendments have been incorporated today.
b. All provisions of the 4/5/6 have been incorporated & applied to the states.
c. Boyd v US: 1886
i. Boyd is compelled to produce evidence that would be used in a civil forfeiture proceeding against him. Boyd raises a 4th & 5th amendment challenge.
1. Court says that if you are being forced to hand over your own property to be used against you, you are being compelled to be a witness against yourself.
2. Equivalent to a search because govt. could have sought a warrant for the papers. The question becomes, “What is an unreasonable search?” The key to is property rights, or a trespass analysis. Is there a physical trespass on the person’s rights? If the government compels you to hand over property viol 5th, when they search and seize your property by trespass, they have violated the 4th amendment.
3. This leaves govt. to search only for fruits of a crime (stolen goods), instrumentalities, or contraband. Search based on government’s property interest.
ii. Bradley says that our amendments written ca. 1791 were to reflect English common law, and that was outlined in the Entick case, which gave us the trespass analysis, protecting the rights of the individual against the government.
3. Boyd v US dies with three cases
a. Schmerber vs. CA
i. Was the search (OUIL blood draw) unreasonable?
ii. Brennan—makes distinction between testimonial evidence & physical evidence. The 5th only applies to testimonial evidence.
iii. Brennan—4th amendment only prohibits unreasonable searches & seizures. What is reasonable is based on clause 2 of 4th amendment; did officer have PC, and if he didn’t have a warrant, was there an exigent circumstance present?
iv. Black’s dissent: Doesn’t buy the argument that providing blood isn’t self-incrimination under the 5th amendment.
1. Hubble (2000) Scalia & Thomas in dissent spoke of the self-incrimination clause and said that current cases make a distinction between testimony/physical, but that has little historical support. History supports Boyd & trespass analysis.
b. Hayden:
i. Brennan says there is no self-incrimination claim, there is no compulsion, and if there were compulsion, it was physical evidence anyway.
ii. Clearly a search, but was it unreasonable? Brennan asks if there was PC, and was there either a warrant or a warrant exception?
iii. 5th violation? No, 5th only applies to testimonial communication (Schmerber)
iv. 4th analysis: Hayden said that his clothing were mere evidence, not F/I/C. Brennan overturns the “mere evidence” rule. Privacy is now the focus of the 4th, and property rights aren’t a good way to think of 4th protections.
v. Is there PC & a warrant (or exception)? If yes, then search is reasonable.
vi. Fortas—concurrence: let’s just add another exception to the category of what isn’t mere evidence.
vii. Douglas—dissent: There is a privacy value in this distinction. In only allowing searches for F/I/C this protects privacy. Limiting what police can search & seize protects privacy. Brennan says this is as arbitrary as limiting searches to Mon Wed Fri.
4. What is a search?
a. Katz
i. What is a search? The key is protecting persons, not places. No more trespass analysis. Be aware of technology advances. We need to focus on a person’s expectation of privacy. When government invades an expectation of privacy, we have a search. The search must be reasonable; based on prior cases, reasonableness is based on PC & warrant/warrant exception.
ii. Katz expands the 4th amendment by its focus on privacy instead of property rights.
iii. Harlan’s concurrence has been viewed as the key part of Katz.
1. Harlan gives a two part test for expectation of privacy:
a. Subjective expectation—does the person expect privacy?
b. Objectively reasonable expectation—is it legitimate? Would society recognize that expectation of privacy?
2. “Is this a 4th amendment search?” becomes the threshold question. Searches (in the vernacular) defined by technical definition above.
iv. Black’s dissent: eavesdropping isn’t encompassed by the 4th amendment because it is intangible; not a person, house, paper or effect. Black wants to stick to the old property analysis.
v. Court now spends little time on the subjective expectation now. The objective REXP becomes the key.
1. Nowlin’s schema of analyzing:
a. Empirical evaluation: based on the facts-what is the likelihood that the expectation of privacy is reasonable?
b. Normative:
i. Importance of privacy interest asserted.
ii. Degree of intrusiveness?
iii. What has person done to guard privacy?
1. Balance it against the importance of the search activity.
b. US v White:
i. “False friend” Hoffa & Lopez cases say that you don’t have a REXP in telling a criminal confederate something (Hoffa) and that a FF with a recorder is okay (Lopez). On Lee has a FF w/transmitter.
ii. Justice White says in White that Hoffa, Lopez & On Lee aren’t searches, so they are still good law.
1. Analysis:
a. Subjective expectation of privacy?
b. Reasonable expectation of privacy?
2. Focus is on White’s assumption of the risk & the importance of collecting accurate evidence. The difference between Katz & White is the connivance of the third party. The third party is where the assumption of the risk lies.
iii. Douglas—eavesdropping is to electronic surveillance as the first gunpowder is to the nuclear bomb. The intrusion is tremendously greater with the recorder. This was unknown to the authors of the 4th, and there is no longer plausible deniability. People don’t talk candidly when things are going to be recorded.
iv. Harlan’s dissent focuses on the importance of being able to talk to others without the fear that what you are saying is being overheard by others. He rejects the risk assumption argument. If the evidence is so important, police need a warrant to search. Harlan would require a warrant to have a CI wear a wire.
c. Oliver v US: 1984
i. Is it a search when police go into a private field?
1. Not a search under the 4th amendment because open fields fail the objective test for reasonableness.
ii. Marshall’s dissent: all states have trespass laws; this is evidence that society considers open fields to be a private area.
iii. To fall under the open field doctrine, an area need not be “open” or a “field.” Open fields are private property that aren’t close enough to the house to be considered curtilage.
iv. This case allowed police to violate the trespass laws without consequence.
d. Dunn (1987)
i. Curtilage—basically the yard, and is protected under 4th. It takes the privacy interest of the home.
1. Factors for determining the curtilage:
a. Proximity to home-closer rather than further
b. Use-is it used like a yard?
c. Enclosures (fences/hedges)
d. Exclude-what steps are taken to keep people out?
e. Ciraolo 1984:
i. Police fly over Ciraolo’s house to see the marijuana growing in the curtilage of the house. (Fixed wing aircraft 1000 feet)
ii. Not a search because it doesn’t invade a reasonable expectation of privacy.
1. Berger’s majority opinion: No REXP, the police are in a lawful vantage point, and the intrusion was minimal. There were no steps taken to guard from aerial inspection.
2. Powell’s dissent:
a. The analysis based on a member of the general public flying over the property is going to be over the house & see the marijuana—there is no empirical risk. The privacy value is high because the area was within the curtilage.
b. If you have to put a roof on the back yard, then you cease to have curtilage.
iii. Riley: Helicopter (FAA regulation 400 ft) The search here didn’t involve any disruption of the use of the property from wind or dust. Even if they had been above 400 ft, but the use was disrupted, this might have been an unreasonable search because of the intrusion.
f. Bond 2000:
i. Bond is on a bus, USBP agent boards a bus to verify immigration status. On the way out of the bus, he squeezes the luggage feels what he thinks are drugs in Bond’s duffel bag.
ii. Is the squeeze of the bag a search? Yes. There was an invasion of a REXP
1. Rehnquist’s opinion (7-2): People may touch & move a bag, which is expected. What the agent did is more than what people would expect. This wasn’t just a visual inspection & Bond took steps to preserve the privacy of his bag.
2. Breyer, Scalia’s dissent: The level of squeezing isn’t abnormal. People may shove your bag pretty hard to squeeze their bag in. The intrusion is just touching the outside of the bag, and that is minimal.
g. Kyllo 2001 (5-4)
i. Was it a search to use a thermal imaging device? Yes, there is a subjective & REXP. There was neither PC nor a warrant.
1. Scalia’s majority opinion: Empirical—what are general members of the public doing with a thermal imager? Nothing.
2. The information obtained is the kind of information that may be determined by physically invading the home. This is highly intrusive & we place the highest privacy value on the home.
3. Scalia squares his opinion with Katz by not allowing advancing technology to erode privacy.
ii. Stevens’ dissent: there isn’t a privacy value in waste heat that comes off the outer walls. If ∆ wanted to guard against this, he could have used more insulation.
h. US v Place (1983)
i. O’Connor—drug dog indicated on luggage, Sup Ct. said that it was not a search. Dog reveals nothing about the interior of the bag except the presence or absence of contraband.
i. Greenwood (1988)
i. Trash pulls are legal—not a search. No privacy interest in garbage, it has been abandoned (sort of like assumption of risk).
j. Jacobsen (1984)
i. Police search replicating a private search that has been communicated to police is valid. Police may replicate a private search as long as they already know what they are going to find based on the communication of what was found. There is nothing left of the REP when private individuals have looked inside the package & communicated what they found.
ii. Police field test the powder was found not to be a search because there is no real intrusion of a privacy interest. Court cites Place in their decision.
k. Private searches:
i. Skinner—(1989) we determine if one is a state actor based on a totality of the circumstances analysis that is fact intensive & draws on CL agency principles. If the police advise, encourage or participate…in the search activity, the private actor becomes a state actor.