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Criminal Procedure Survey
Elon University School of Law
Rich, Michael L.

Professor Rich

Criminal Procedure

Spring 2013

I. The Criminal Process: Failures, Choices, and Legitimacy

A. Failures

1) Introduction

2) Investigation Failures

Brown v. Mississippi- The right to not be tortured cannot be waived by your counsel not objecting at trial (this is a very narrow ruling). The court admits that the state can suspend the right to trial by jury. Notes: This was in 1936 when the Supreme Court did not want to meddle in state cases. The court’s reasoning for the holding was straight out of the dissent of the Mississippi Supreme Court for the case.

3) Norms of the Criminal Process- There are four underlying reasoning for why the laws places limits on what the police can and can’t do: accuracy, fairness, efficiency, and limited government. Two underlying concerns that aren’t discussed explicitly in most of the cases, limited federal government vs. state government, giving up liberty for security.

II. Fourth Amendment: An Overview

A. The Text and its mysteries

a. “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 no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Fourth Amendment

b. Problems and Causes

i. Problems:

1. People – Who are the people?

2. Reasonableness Clause (unreasonable search and seizures)

3. Warrant Clause (no warrants shall issue but on probable cause)

c. The Reach of the Fourth Amendment

i. The Fourth Amendment does not apply to foreign individuals in foreign lands and does not apply when evidence is procured through a private citizen unless the police were actively involved.

B. Passing the Threshold of the Fourth Amendment: What governmental conduct constitutes a “search” or a “search of a person, house, paper, or effect” and therefore triggers the Fourth Amendment protection?

A. What is a “search”?

a. General Principals

i. Katz v. US (1967)

1. Facts: The defendant was placing wagering information by telephone from Los Angeles to Miami and Boston in violation of a federal statute. The FBI had attached a listening and recording device to outside of the public telephone booth where the defendant placed his calls.

2. Issue: The issue is not whether the telephone booth is a constitutionally protected area under the 14th amendment. The Issue was what the police did considered a search.

3. Rule: The 14th Amendment protects people and not places. It has to do with the expectations of the individual, whether he meant the conversation to be public or private, that determines whether the 14th Amendment applies. Property interests no longer control the right of the Government to search and seize.

ii. The KATZ Doctrine in Application: United States v. White (1971)

1. Facts: Defendant was charged and convicted on several illegal transactions in narcotics. The defendant was talking to a Mr. Jackson and the conversation was recorded by two police agents whose testimony was given at trial.

2. Issue: Whether the Fourth Amendment bars from evidence the testimony of governmental agents who listened in on the conversations?

3. Rule: Someone can remember the conversation they had with police and then write it down later for the police and testify about it at trial so it should follow that they could record the conversation either (1) as it happened or (2) carries radio equipment that broadcasts to a different location.

· Step by step questions to ask-

o Does the 4th Amendment Apply?

§ If so, was the 4th Amendment violated?

· What is the remedy?

· Who does it apply to?

o It definitely protects American Citizens in the US and does not protect Foreign Individuals in Foreign Lands

o But what if the US does something to a citizen outside this country or what if a foreign individual is inside this country?

· What is the scope of the 4th Amendment?

o Search and Seizures

o Of a house, place, etc.

· The rule before Katz Comes from Olmstead (1928) which was that a search invades a private area and therefore is a trespass and a search. No trespass = no search. It was mostly thought of a physical intrusion.

· Katz is about the expectations of society about the privacy they expect inside a telephone booth. It’s not about places but about expectations.

o Harlan

§ 1) Subjective/ Actual Expectation of Privacy?

§ 2) Reasonable Expectation of Privacy?

o Black’s Arguments

§ Strict Textualist Approach

· A conversation is not a person, a house, a place, or an effect.

§ You cannot change the meaning of the Amendments because of technology.

· If you want to expand the 4th Amendment, pass a law dealing with the police or change the 4th Amendments

· The Mode of Intrusion

o The way that police have gotten the information.

o Are the police doing something unexpected?

o The purpose of the police investigation doesn’t matter.

· White (1971)

o Did White have a subjective expectation of privacy?

§ There was a subjective/actual expectation of privacy but the question was that expectation reasonable.

· Do I know that anyone I talk to might be an informant? Subjective

· Do most people know that anyone they talk to might be an informant? Empirical

· Should most (CRIMINALS) know that anyone they talk to might be an informant? A normative claim

§ Harlan is worried because this is going to harm regular concern.

· Smith v. Maryland (1979)

o Facts: A robbery victim gave the police a description of the robber and of the automobile she had observed near the crime. The victim received threatening phone calls from the robber and at one point stepped outside at the request of the robber and she spotted the same car she had seen at the robbery. The police ran the license plate number and learned that the car was registered to Michael Smith. The police then tapped the phone with a “pen registerk” that showed the numbers of the callers only (it did not record sound) for which they did not get a warrant. Once they had evidence that McDonough was calling her, they got a warrant to search his home and discovered a phone book with the victim’s number in it. Defendant was convicted and sentenced to six years for robbery.

o Issue: Is the installation of a device that allows electronic surveillance considered a search under the fourth amendment?

o Rule: In keeping with Katz, the person invoking its protection claim a “justifiable”, a “reasonable” or a “legitimate expectation of privacy” that has been invaded by government action.

o Holding: Since the pen register was installed on the telephone company’s property, petitioner obviously cannot claim that his property was invaded or that the police intruded on a constitutionally protected area. The petitioner did not have a legitimate expectation of privacy regarding the numbers he dialed on his phone. The petitioner voluntarily turned over the number he was dialing to third parties and therefore did not expect privacy and even if he did expect privacy, that expectation was unreasonable. He assumed the risk that the phone company would let the police view which numbers he dialed.

o Dissent: Stewart: A number corresponds to a person and that is an intimate detail of a person’s life: who they are talking to. Marshall: Even if you assume that individuals know that phone companies monitor calls, it does not follow that they expect that information to be public. Implicit in an assumption of risk is some notion of choice

ctation-of-privacy test has been added to, not substituted for, the “common-law” trespassory test.

· Common-Law Trespassory Test

o 1) Government Trespass on Private Property

o 2) For purposes of obtaining information

· Karo (1984)

o The government did not trespass on the defendant’s property but onto the property of another that then transferred to the defendant.

o The government doesn’t necessarily have to get a GPS on someone’s car.

o Justice Alito- There is no precedent in any prior case law. It depends on how long the police were following him. Longer-term GPS monitoring is an intrusion. There are ever evolving societal expectations of society.

o Rule: A seizure occurs when there is a meaningful interference with an individual’s possessory interest in property.

o Holding: There was no meaningful interference with his possessory interest. Also, any interference that happened was to the first individual who possessed the thing that had the device in it who consented and the buyer of the thing.

o It depends on the nature of the item and why the person is buying it.

· Spinelli v. US (1969)

o Facts: The police arrested the defendant on charges of gambling for traveling to Missouri to conduct gambling activities. They had a warrant that was based upon a report by an anonymous informant detailing and an independent FBI investigation that corroborates what the informant said.

o Rule: A magistrate is to issue a warrant based on a common-sense reading of the entire affidavit.

o Anguilar Test on hearsay information being used in an affidavit: An affidavit did not set forth the underlying circumstances and it did not establish the credibility of the unknown witness.

o Holding: The tip does not pass the Anguilar Test because the informants tip has to be judged on its own merit as to whether it passes the Anguilar Test. The tip did not establish the accused criminal activity in sufficient detail. The only details were the phones used by the defendant. The police in Draper verified the details of the anonymous tipper as opposed to this case where the police.

· Probable Cause- “Exists where the facts and circumstances within the officers’ knowledge and of which they have reasonably trustworthy information and are sufficient in themselves to warrant a man of reasonable caution in the belief that either an offense has been or is being committed or that evidence subject to seizure will be found in the place to be searched.”

· Broken Down-

o “Within the officers’ knowledge”

o “reasonably trustworthy information”

§ Untrustworthy- hunches, rumors,

§ Basis of knowledge

§ Police officer is deciding whether or not to engage in search or seizure.

§ Veracity- Credibility (the source of the information…the character of the informant) and reliability (past action, how consistently has this informant provided accurate information)

§ Totality of the circumstances test- uses reasonability

o “sufficient in themselves to warrant”

o “a man of reasonable caution”- objective standard