Criminal Procedure (Nowlin, Fall 2003)
I. Overarching policy issues in criminal procedure
A. Substantive policy dimension
1. “Crime control” model
A. “(R)epression of crime is the most important domestic goal of government.” (Understanding Criminal Procedure, Joshua Dressler)
B. Focus efficiency of convictions
1. Advocates prefer no judicial processes to formal
2. Police officers permitted substantial opportunity to function free of legal impediments
C. Favors uniformity
1. Procedures must be “routine” and “stereotyped” to handle large numbers of cases]
D. Presumes guilt of suspects
1. “Almost all criminal Ds are, in fact, guilty.” (Dershowitz)
E. “The Crime Control model sees the efficient, expeditious and reliable screening and disposition of persons suspected of crime as the central value to be served by the criminal process.” (Packer, The Courts, The Police, and the Rest of Us [1966])
2. “Due process” model
A. Focus on the rights of accused; human rights; dignity; fear of government tyranny
1. More likely to favor interests of individual over community
2. Questions reliability of informal processes; believes in early intervention of lawyers, judges
A. Instead of “conveyor belt” comparison of “crime control model,” “due process” model more like an obstacle course.
3. Focuses on doctrine of legal guilty -- must prove beyond a reasonable doubt
4. “The Due Process model sees (criminal convictions) as limited by and subordinate to the maintenance of the dignity and autonomy of the individual.” (Packer, supra)
B. Structural dimension of criminal procedure
1. Restraint in judicial power (in line with “crime control” model)
A. Deference to democratic decision-makers (Legislatures)
B. Separation of powers; federalism
1. Local governments may want more flexibility in crime control
2. Strive to minimize judiciary’s political discretion
C. Required to ground decisions very firmly in traditional legal materials
D. Supreme Court in the 1980s
2. Activism in judicial power ((in line with “due process” model)
A. More free to implement broader constitutional values
B. To prevent discrimination of majority over minority
C. Exercise substantial amount of political discretion in determining constitutional provisions
C. Supreme Court in the 1960s
1. Started federalizing criminal procedure
C. Supreme Court today
1. Conservatives (“crime control” and “restraint”)
A. Rehnquist, Thomas, O’Connor, Kennedy, Scalia
2.. Liberals (“due process” and “activism”)
A. Souter, Stevens, Ginsberg, Breyer
3. NB Rule of 5
A. Five votes can do anything
D. Limits
1. Done on case-by-case basis -- piecemeal
2. Coherence -- what a case means and how it does, or doesn’t, line up with other cases
3. Implementation
II. Incorporation
A. Duncan v. Louisiana (391 U.S. 145, 1968)
1. IMPORTANCE: “Because we believe that trial by jury in criminal cases is fundamental to the American scheme of justice, we hold that the 14th Amendment guarantees a right of jury trial in all criminal cases which--were they to be tried in federal court--would come within the Sixth Amendment’s guarantee.” (White)
A. Incorporated Sixth Amendment to state practice
2. D was convicted without a jury trial in Louisiana on a simple battery charge (max. penalty of two years, $300 fine). D wanted a jury, and Supreme Court held that the jury trial was “fundamental to the American scheme of justice” in such a crime.
A. NB That if it were a less serious offense carrying only a penalty up to six months in prison, a jury trial is not mandated.
B. NB Does not affect waivers
3. Fourteenth Amendment (Section 1)
A. “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
B. Approaches to incorporation
1. Fundamental fairness (fundamental rights) doctrine (advocate: Justice Harlan, who dissents in Duncan)
A. Asserted first in 1884, theory asserts due process clause is not a reflections of the provisions of the Bill of Rights
B. Rights are only protected if “(t)o abolish them is…to violate a ‘principle of justice so rooted in the traditions and consciences of our people as to be ranked as fundamental.” (Palko v. Connecticut, 302 U.S. 319, 1937)
C. Objection (as stated by Justice Black)
1. Too subjective and not limited to Bill of Rights
2. Total incorporation (judicial architect: Justice Black)
A. “(O)ne of the chief objects that the provisions of the (14th) Amendment’s first section, separately, and as a whole, were intended to accomplish was to make the Bill of Rights applicable to the state.” (Black)
B. a “due process” incorporation
C. All rights in the first eight amendments should be incorporated
3. Selective incorporation (advocate: Justice White)
A. Current theory
B. Compromise: rights are those of “fundamental fairness” in addition to the enumerated in the Bill of Rights.
1. What’s something that’s fundamentally fair?
A. Can’t have coerced confessions; must prove every element beyond a reasonable doubt
III. Fourth Amendment
A. Rise and Fall of Boyd v. United States, 116 U.S. 616 (1886)
1. Fourth Amendment tied to physical intrusion--trespass--into constitutionally protected area.
A. SUMMARY: D was forced to turn over papers on imported plate glass to prosecutor. Court holds violates Fourth and Fifth amendments.
1. Gov’t must have superior possessory interest to seize under Boyd
A. EXAMPLES
1. Papers that gov’t requires D to keep
A. Hale v. Henkel 201 U.S. 43 (1906)
1. Boyd analysis doesn’t apply to corporations.
B. Shapiro v. United States 35 U.S. 1 (1948)
1. Required records doctrine
2. Stolen goods
3. Contraband
4. Criminal instrumentality
1. Maron v. United States (275 U.S. 192, 1927)
A. Distinguished between instrumentality and mere evidence
B. Gould v. United States 255 U.S. 298 (1921)
A. Applied Boyd analysis to hold gov’t can’t just search for “mere evidence”
2. Two clauses of Fourth Amendment
A. Clause 1: Reasonableness
1. Under Boyd, it is unreasonable to force D to turn over papers that are incriminating (NB close tie between Fourth and Fifth amendments)
B. Clause 2: Probable cause / warrants
3. Olmstead v. United States, 277 U.S. 438 (1928)
A. Under Boyd, FBI didn’t violate D’s Fourth Amendment rights by tapping telephone wire outside of home. Conversation not protected (speech is not property) by Fourth and no physical intrusion.
4. Rejecting Boyd
A. Schmerber v. California, 384 U.S. 757 (1966) (BRENNAN)
1. Court holds intrusion of D to get blood test is not a violation of Fourth
A. Court rejects property analysis, holds Fourth is about privacy
B. Due to exigency, blood test needed to avoid losing dissipating BA level
1. Only minor intrusion and warrant delay would have hindered
2. Test for reasonableness
A. Have probable cause and search warrant
B. Have probable cause and exigency
2. NB Fifth Amendment challenge by D rejected too
A. Court holds only testimonial or communicative (not blood test) protected
B. Warden v. Hayden, 387 U.S. 294 (1967) (BRENNAN)
1. Rejects mere evidence rule
2. Under privacy analysis, search for mere evidence constitutional if probable cause requirements met. Further distinction between “privacy” and “property”
A. “Privacy is disturbed no more by a search directed to a purely evidentiary object than it is by a search directed to an instrumentality, fruit, or contraband.”
3. Dissent (DOUGLAS)
A. citing Learned Hand, “(T)he real evil aimed at by the Fourth Amendment is the search itself…If the search is permitted at all, perhaps it does not make so much difference what is taken away, since the officers will ordinarily not be interested in what does not incriminate…Nevertheless, limitations upon the fruit to be gathered tend to limit the quest itself.”
B. Threshold of Fourth Amendment (SEARCH)
1. What is a search?
A. Katz v. United States, 389 U.S. 347 (1967) (STEWART)
1. SUM: D transmitting wager information over telephone. Gov’t used electronic devices to listen in (tape recorder on phone booth). Court holds violates Fourth. REJECTS Boyd analysis, and applies privacy analysis.
2. “(T)he Fourth Amendment protects people, not places.”
A. Is there a reasonable expectation of privacy, thus meaning Fourth applies and gov’t needs probable cause/warrant or probable cause/exigency
B. TEST FROM HARLAN’S CONCUR
1. Subjective prong -- actual expectation
2. Objective prong -- is the expectation one society recognizes as legitimate, justifiable and reasonable
A. Empirical prong: look at facts around you
B. Normative value test
1. Social value of privacy rights asserted
2. Degree of intrusion
3. What efforts taken to protect privacy
4. Importance to police
C. Dissent (BLACK)
1. Fourth doesn’t apply to eavesdropping
B. United States v. White, 401 U.S. 745 (1971) (WHITE)
1. False friend
A. SUM: Court holds D assumes risk person on other end of phone will tell gov’t. Not a violation of Fourth.
B. What a person knowingly exposes to the public, there is no protection
2. Hoffa v. United States, 385 U.S. 293 (1966)
A. Undercover agents getting info. from D not a violation
3. NB Shift from “reasonable expectation” to “possible risk of disclosure”
C. Smith v. Maryland, 442 U.S. 735 (1979)
1. Court holds use of pen register to record numbers dialed from private residence is not a search
2. Distinguish “content” from Katz analysis from only numbers dialed
D. Bond v. United States, 120 S.Ct. 1462 (2000) (REHNQUIST)
1. Court holds police can’t “squeeze” luggage on bus in exploratory manner
A. Contrast: here, physical intrusion; Ciraolo and Riley, infra, only visual
B. Dissent (BREYER, SCALIA)
1. Squeezing foreseeable by other passengers; tying purpose of squeeze to 4th Amendment
2. No reasonable expectation of privacy with luggage on bus
2. United States v. Place, 462 U.S. 696 (1983)
A. Not a search to have drug-sniffing canine come up to luggage in public place
E. Searches in other contexts (from handout)
1. Air Pollution Variance Board v. Western Alfalfa Corp. (1974): daylight visual observation of smoke plumes from open fields of respondent’s property not a search and seizure
2. Rakas v. Illinois (1978): automobile passenger has no legitimate privacy interest in unlocked glove compartment or area under front seat
3. Hudson v. Palmer (1984): prisoner has no legitimate privacy interest in prison cell; Fourth Amendment not applicable within confines of cell
4. New York v. Class (1986): automobile owner has no legitimate privacy interest in vehicle identification number.
5. California v. Greenwood (1988): Looking into garbage placed in opaque containers and left for collection at curb at end of driveway not a violation of search and seizure
6. United States v. Jacobsen, 466 U.S. 109 (1984): Police can replicate a private search if by doing so learn nothing new
A. Someone finds container, opens it, finds drugs, closes it and gives to police and tells police what is inside.
B. Must look to totality of the circumstances to determine whether acting at behest of police
C. Open fields doctrine
1. Fourth Amendment does not protect an open field
A. Curtilage is protected (yard of home)
1. Why not protect?
A. Textual analysis
1. “Open fields” not part of Fourth Amendment language
B. Katz test
1. Property right not determinative of privacy right
A. Go through the empirical and normative tests
1. “Open fields do not provide the setting for those intimate activities that the Amendment is intended to shelter from government interference or surveillance.” (J. Powell)
B. Oliver v. United States (466 U.S. 170, 1984) (POWELL)
1. Court holds field about one mile from Oliver’s home is not protected by Fourth Amendment, and police who found marijuana there did not conduct a “search” as defined in Amendment
2. Bright-line rule
A. Once designated an open field, not protected by Fourth Amendment
3. Dissent (Marshall)
A. Dismisses textual analysis, pointing out Katz prevents “search and seizure” of taped telephone conversations at phone booth, which is not explicit in Amendment
B. Offer three-prong objective test for why this open field is protected
1. Expectation of privacy (owner of property expects such)
2. Nature of use (could use for solitary walks, religious ceremonies)
3. Precautions (posted no trespass sign)
C. Contrary rule of law
1. Can’t trespass to search, otherwise giving police blessing to break law to get information
4. Four-part test to determine where curtilage stops and field begins (from United States v. Dunn, 480 U.S. 294, 1987)
A. Proximity to house
B. Enclosure (a hedge, trees)
C. Nature of the use for which land is put
D. Precautions (how high is the fence?)
C. California v. Ciraolo (476 U.S. 207, 1986) (BURGER)
1. Court holds no search for police using airplane to fly over property--fenced off from a ground-level view--to see marijuana plants
A. Fourth Amendment does not require “police traveling in the public airways at this altitude (1,000 feet) to obtain a warrant in order to observe what is visible to the naked eye.”
B. Key that police used a normal camera available to general public
1. Contrast with Kyllo v. United States (121 S.Ct. 2038, 2001)
A. Court strikes down search with thermal-imaging device aimed at a private home from public street with technology not in general public use and information not otherwise obtainable without physical intrusion
C. Dissent (Powell)
1. Violates empirical test (individual had expectation of privacy)
2. Violates normative test
A. Had fences to guard
2. Florida v. Riley, 488 U.S. 445 (1989)
A. Helicopter used to see marijuana not a search as long as fly at legal FAA limit (plurality held); here 400 feet was legal
D. Threshold of Fourth Amendment (SEIZURE)
1. Of Property
A. Meaningful interference with a possessory interest
2. Of Person
A. Police handcuff, restrain, shoot you
B. Seizure has to be intentional (Brower v. Inyo County (1989))
1. Can have transfer intent -- try to shoot someone but shoot B; B is seized.
C. Three ways:
1. Requires touching
2. Says “not free to leave”
3. Involves a police weapon (pointing at you)
3. United States v. Mendenhall (1980)
A. Totality of the circumstances test (“fuzzy test”) for seizure Reasonable person would believe he is not free to go.
1. Policy (crime-control) -- want police to be able to talk with people without every conversation being a “seizure”
B. Court says person in airport stopped by officers who find her suspicious would reasonably feel free to leave when police stop to ask her questions, and ask her to come to office; officers had given her back ticket and license before asking her to come with them.
1. Need more for seizure as part of totality of circumstances test
A. Florida v. Royer (1983)
1. Suspect in airport was seized when officers took ticket, license, said they suspected him of drug trafficking, asking him to come to a police room with them and didn’t indicate he was free to leave.
C. Applying Mendenhall in confined space
1.Florida v. Bostick (1991)
A. Court holds there is no per se rule that questioning on a bus by police is a seizure.
B. Reasonable for bus passenger to decline officer’s request or otherwise terminate encounter
1. Test no longer feel free to leave, but feel free to decline and terminate
C. Dissent (Marshall)
1. Noted officer’s gun as intimidating; bus passenger couldn’t leave
D. Seizure requires physical restraint or submission to officer’s request
1. California v. Hodari D. (1991)
A. Court holds youth who runs from police chasing him is not seized until physically tackled by police.
1. No seizure until submission to officer’s request to stop or physical touching.
B. Policy -- Want to encourage compliance with police; another reason, look to common law for when there’s an arrest
4. Exclusionary Rule (in its Fourth Amendment context) (see notes, infra)
A. Weeks v. United States (1914)
1. Applied exclusionary rule to evidence in federal cases
2. Reasoning
A. W/o exclusionary rule, Fourth Amendment would be right without a remedy
B. Judicial integrity -- don’t want to be complicit in constitutional violation
B. Mapp v. Ohio (1961)
1. Applied exclusionary rule to states (overrules Wolf v. Colorado, 1949, which held e/r rule didn’t have to apply to states)
2. Reasoning (adding to Weeks)
A. DETER police violations
3. Dissent (Harlan)
A. Court wrong to impose e/r on states (fettering unnecessarily)
C. Arguments on Exclusionary Rule
1. Pro
A. Deterrence of bad police conduct
1. Prosecutors weren’t going to prosecute for violations
B. More teeth than a civil claim for violation
2. Against
A. Protects criminals
B. Other remedies outside of exclusion available (fines)
E. Unreasonableness and Probable Cause in Fourth Amendment
1. Two clauses in Fourth Amendment
A. Clause 1: reasonable
1. Guarantees right to be free from unreasonable searches and seizures
2. Probable cause is required as a condition of warrantless searches and seizures
A. Want to encourage use of warrants
B. If less than p/c needed for warrantless searches and seizures, little incentive to get warrants
B. Clause 2: warrant / probable cause (see notes, infra)
1. Probable cause must be based on more than mere suspicion
2. Probable cause to search exists if the facts and circumstances within (the officers’) knowledge and of which they (have) reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief than ‘an item subject to seizure will be found in the place to be search.’
2. First test to determine probable cause for warrant
A. Spinelli v. United States (1969)
1. Two-prongs
A. Veracity
1. Looked at independently for truthfulness
2. Oath; affirmation; “I swear” by the officer
2. For informant, veracity of informant (reliability)
B. Basis of knowledge
1. Facts showing how come upon information supplied for warrant
2. Is it first-hand?
3. Second-hand tip?
A. Are there self-verifying details?
B. If not self-verifying, is there corroboration? C. If not corroboration, add to rest of mix
3. Illinois v. Gates (1983)
A. Case overrules Spinelli test, incorporating Spinelli into totality of the circumstances test
B. Question -- Would a reasonable person think there is a substantial basis for a warrant?
C. While both prongs of Spinelli are included, one can outweigh what’s lacking in another
D. Policy
1. Test less rigid than two-prong; less complex; encourages police to get warrants because less rigid than Spinelli
E. Problem:
1. Balancing test has flaw -- liar (the basis of knowledge) can tell someone else (veracity for warrant) a lie; the veracity prong can’t make up for basis of knowledge prong
4. Review of appellate courts of warrant’s validity
A. Warrant searches -- deferential
B. Warrantless searches -- de novo
5. Pre-textual stops
A. Whren v. United States (1996)
1. Subjective state of mind of officer is irrelevant if there is probable cause someone committed a traffic offense; police can stop even if officer really wants to look for drugs as long as there was a traffic offense to base stop on.
2. Per se reasonable. Reasonable officer would stop someone after traffic offense.
A. Even if there is racial profiling, not a Fourth Amendment violation--Equal rights complaint.
B. Related case -- full custodial arrest for minor offense permitted
1. Atwater v. Lago Vista (2001)
F. Unreasonableness and warrants