OUTLINE – Criminal Procedure
1) When the system fails
a) Powell v. Alabama,. Rule of Law – State-court criminal defendants must be provided ample opportunity to retain counsel before trial. If a D does not retain an attorney, one must be appointed to represent him or her.
b) Here the U.S. Supreme Court used the Fourteenth Amendment due process clause in order to reverse the State court’s decision
i) A process known as incorporation
(1) which began what is known as “the incorporation debate”
(a) Justice Hugo Black was proponent of total incorporation.
(i) He believed the 14th amendment fully incorporated the bill of rights to the states
(b) Black’s view did not win the day; instead, the USSC adopts a case-by-case, selective incorporation
(i) Attempt to strike a balance between –
1. individual protections
2. procedural rights
3. states rights
(ii) where the court selectively incorporates aspects of the bill of rights and applies them to the states through the 14th amendment
2) Seeking Legitimacy
a) Duncan v. Louisiana, Rule of Law – Under the Sixth Amendment, all criminal defendants have a constitutional right to a trial by jury.
b) Why is a jury trial so important?
i) Having peers judge as opposed to a judge with potential predispositions about the law could make a difference in the outcome
ii) May protect against judicial bias
c) States don’t always adhere to this – in NC, for example, misdemeanor cases generally not afforded jury trials but if the sentence is for 30 days or longer the case can be appealed for a jury trial de novo (NC does not believe that a jury trial is a fundamental right in all cases)
3) The Fourth Amendment
a) The Fourth Amendment is a pre-trial inquiry
i) Evidence seized in violation cannot be used at trial – The exclusionary rule
(1) Courts recently have narrowed this doctrine
ii) A suppression motion on wrongfully obtained evidence is heard by a single judge, not a jury
(1) Absent abuse of discretion on the part of the trial judge, that ruling will not be overturned
b) Fourth Amendment implicates government actions only, not those of private citizens
i) Thus one cannot claim a violation against one who is a private citizen
c) “The right of the people to be secure in their . . . “ “. . . shall not be violated
i) Persons
(1) To invoke the Fourth Amendment one must have standing –
(2) A claim cannot be raised unless the complainant is the individual whose rights have been violated
(3) A claim cannot be raise on behalf of another who was injured
ii) “Persons” include citizens and non citizens alike
(1) Illegal immigrants are also considered “the people”
iii) Houses
(1) Broadly defined to also be apartments, hotel rooms, etc.
iv) Papers and effects
(1) Letters
(2) Business reports
(3) Luggage
(4) Things contained in automobiles
4) What is a search under the Fourth Amendment?
a) Katz v. United States, Rule of Law – The Fourth Amendment protects against all communications that a person does not knowingly expose to the public.
i) Note that USSC has abandoned strict construction of the Fourth Amendment
(1) i.e., before Katz the court considered searches to be only over tangible things
ii) Cases run Pre-Katz and Post-Katz
b) Harlan’s concurrence produced the standard two-prong formula:
i) A person must have an actual (subjective) expectation of privacy; and
ii) That expectation of privacy is one that is reasonable (legitimate, justifiable) – (objective)
(1) (what does a reasonable person think?) – this determination was made by the USSC justices; also note that in addition to the subjective and objective prongs, the invasion of privacy must be
(a) Justified and
(b) Legitimate
(2) Harlan’s test is known as the “REASONABLE EXPECTATION OF PRIVACY” test
(3) What a person knowingly exposes to the public is NOT protected. Knowingly means –
(i) Purposefully; or
(ii) Knows or should know
1. “purposefully” is the higher standard – entails an element of exhibitionism
iii) General rule from Katz – the Fourth Amendment protects the person, not the place
c) United States v. White, listening device worn by informant. Rule of Law – A defendant bears the risk that communications with another will be transmitted, electronically or otherwise, to government agents.
d) Hoffa v. United States,
i) The doctrine from this case is termed the “false friends” doctrine.
e) Lewis v. United States, undercover officer purchased drugs at the home of D. The court held that defendant could not argue that an entry to his home was entitled to stricter scrutiny because he was using his home as a business.
f) Smith v. Maryland, Held, the use of a pen register to monitor telephone
y of one’s home.
q) Bond v. United States, The agent’s manipulation of the bag was a search within the meaning of the Fourth Amendment; petitioner’s personal luggage was protected by the Amendment because he had a privacy interest in it. The court held further that the search violated the Fourth Amendment because petitioner sought to preserve privacy in the luggage by using an opaque bag.
5) What is a Seizure under the Fourth Amendment?
a) Two definitions of the term –
i) Arrest
(1) (police must have adequate cause to seize a person)
ii) Seizure of property –
(1) Generally involves an analysis of a person’s property rights (below) –
(a) Does the taking involve a deprivation of property rights?
b) Analysis –
i) Was there a seizure?
ii) If so, was the seizure reasonable?
c) See United States v. Karo, supra. Installation of the beeper inside the can of ether was not a seizure because the can of ether belonged to the government prior to delivery to D; thus there was no deprivation of property rights.
6) Probable Cause
a) Fourth Amendment states “. . . no warrants shall issue without probable cause.”
i) Similar to warrantless search or seizure – all are generally unreasonable.
b) Probable cause is a standard of proof that justifies search or seizure
i) Lesser standard than the preponderance of the evidence
ii) It is immaterial whether or not the officer’s suspicion is correct or not for the purposes of probable cause.
c) Brinigar v. United States, conviction for transportation of licquor. The officer had probable cause to stop petitioner because petitioner had moved from mere suspicion to probable cause by recently and repeatedly giving substantial grounds for believing that he was engaged in illegal activity.
i) Per Brinigar, probable cause to arrest exists when –
(1) Facts and circumstances within knowledge of the officer, and
