Criminal Procedure – Gentile – Fall 2010
· Final is comprehensive:
o 20 MC (40% of grade)
o 5 short answer (20% of grade)
o 1 long essay (40% of grade)
What Does This Class Deal With?
The 4-6th amendments of the Constitution.
These cases are seminal Supreme Court interpretations of the constitution.
All rights that we are going to discuss in this class are fundamental rights against the State and Local governments.
Incorporation Doctrine – How/ If the Federal Bill of Rights are applied through the due process clause to the States.
The Bill of Rights (the first 10 amendments of the Constitution) – designed to limit the power of the Federal Government.
The only amendment that deals with State rights is the 14th amendment.
§ We are interested in the Due process clause of the 14th amendment in this class.
Due Process Clause v. Bill Of rights
How do we get the Bill of rights applied to the states since they only apply to the Federal Government?
Two Schools Of Thought:
· The Full Incorporation Theory
o Says the full bill of rights should be applied to State authorities like the Federal authorities (It’s a minority opinion).
· The Fundamental Rights Doctrine
o Selective incorporation of the Bill of Rights.
o Says only the fundamental rights should be incorporated.
Stare Decisis – The legal principle by which judges are obliged to respect the precedents established by prior decisions.
OUTLINE FOR TEST:
Think in terms of a checklist. If you have all of these you need a warrant:
People?
Due to the Mapp case the 4th amendment and the exclusionary rule applies to state Government actions (through the due process clause – 14th amendment) as well as to federal government actions.
· Evidence from illegal search and seizures will not be allowed in state or federal courts.
· Applies to all government.
Does it deal with a person, house, effect, or paper?
The text of the 4th amendment:
· The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizure, shall not be violated, and no warrants shall issue, but upon probable cause supported by Oath or affirmation, and particularity describing the place to be searched and the persons or things to be seized.
Search or Seizure?
SEARCH = Katz case
· Subjective expectation of privacy that society accepts as reasonable.
SEIZURE = Karo – Terry – Mendenhall cases
· A meaningful interference with a person’s possessory interest in property. (Karo)
· Restraint under the reasonable suspicion standard to conduct a very brief administrative search (Terry)
· Where a reasonable person would not feel free to walk away under the totality of the circumstances (Mendenhall)
Probable cause?
PROBABLE CAUSE = Gates case
· Using the totality of the circumstances test, is there substantial evidence (more likely than not) to say a crime has been committed?
· Allows a value judgment from magistrates in issuing the warrant.
o The magistrate needs to be neutral and detached
o The warrant needs to have some level of particularity.
Oath and Affirmation
The officer must offer an oath or affirmation to a detached and neutral magistrate before there can be a warrant.
Particularity
The warrant needs to have particulars and can’t be general in nature.
Exceptions to needing a warrant:
Exigent circumstances
Consent
Plain view
Community caretaker (to protect people)
Search Incident to an arrest (Gant)
§ No need for PC
§ Temporal & special relationship
§ Search only the area within the “immediate control” (grab area) of the suspect OR where there is reasonable suspicion of evidence
Inventory
§ For protection of P’s property
§ For protection of the officer
§ For protection against claims
Automobile (Acevedo)
§ PC & Exigency
§ You can search the automobile and any containers in it
o There is a scope limitation
Chapter 2: The Fourth Amendment: An Overview
Incorporation Doctrine
Exclusionary Rule (Weeks Case) – In order for the government to be limited it must have some sanction against it.
The Supreme Court looks heavily to the facts of the individual cases to determine which or if the Bill of Rights can be applied through the 14th Amendment to the States.
HISTORY:
Weeks v. US (1914) – Suprem
of privacy that society accepts as reasonable.”
1. Olmstead (1920’s): There was no penetration; therefore there was no entry or searching and seizure. The 4th amendment has been violated if there is physical invasion/ penetration.
§ The 4th amendment applies to physical things.
2. Goldman (1940’s): Microphone up to a wall. There was no penetration; therefore there was no entry or searching and seizure.
§ The 4th amendment applies to physical things.
3. Silverman (Early 1960’s): Microphone through a wall. There was penetration so there was a search and seizure.
§ The 4th amendment applies to physical things.
4. Katz v. U.S. (Late 1960’s) ON THE EXAM – Know the case name: Phone booth conversation tapped from outside whith no penetration into the phone booth.
§ Instead of following stare decisis (court precedent), the court shifted the focus of the 4th amendment to a subjective expectation of Privacy that society recognizes as reasonable.
KATZ IN APPLICATION – FALSE FRIEND CASES:
5. Hoffa (Late 1960’s): You take the risk when you talk to someone.
§ There is NO reasonable expectation of privacy when you tell someone something.
§ “Reap what you sow.”
6. White (1970’s): One of the conversations was in the D’s home.
§ The secret simultaneous electronic recording of conversations between an individual and a government agent, without a warrant, does not violate the 4th amendment since they have NO reasonable expectation of privacy.
7. Smith v. Maryland (1979): The installation of a “pen register” does not constitute a “search” within the meaning of the 4th Amendment when the D made a threatening phone call from his house and the telephone company installed a pen register to catch the D upon the police’s request.
