Criminal Procedure Outline
Spring Semester, 2011 – Professor Place
I. Incorporation:
a. Did the 14th Amendment Incorporate all of the provisions of the Bill of Rights making them applicable to the states:
i. No. The court has never taken the view of full incorporation.
ii. Selective Incorporation Doctrine:
1. “The question is whether a particular procedure is fundamentally necessary to the Anglo-American regime of ordered liberty.”
iii. Rights that have been selectively incorporated:
1. Fourth Amendment Right against unreasonable searches and seizures
a. And the right to have excluded from criminal trials any evidence illegally seized;
2. The right guaranteed by the Fifth Amendment to be free from compelled self-incrimination
a. Miranda, asserted right to counsel, ect.
3. The Sixth Amendment Right to Counsel, To a speedy and public trial, To confrontation of opposing witnesses, and To compulsory process for obtaining witnesses.
II. 4th Amendment- Protected Interests & Right of Privacy
a. Expectation of Privacy
i. For the 4th Amendment to apply:
1. There MUST be GOVERNMENT action; AND
2. There must be a reasonable expectation of privacy
a. The Court has frequently used Justice Harlan’s formulation of the standard: A reasonable expectation of privacy is one in which the individual engages in conduct that exhibits “an actual (subjective) expectation of privacy that society accepts as reasonable”.
ii. Katz v. U.S.- Government taps a phone booth. “The 4th Amendment protects people, not places.”
1. Two Part Test:
a. Has the individual exhibited an actual expectation of privacy?
b. Is the expectation of privacy reasonable?
c. Did the government comply with constitutional standards for a search & seizure?
i. The government argued that they had established a “strong probability” that the suspect was acting illegal and asked the court to carve out an exception to the rigid warrant requirements.
ii. The court refused to carve out a new exception to the Usual Rule b/c they fear that after-the-fact justifications of police behavior will lead to the violation of citizens’ rights.
iii. Minnesota v. Carter- An individual’s capacity to claim the protection of the 4th Amendment depends upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded space.
1. Example: Does an individual have an expectation of privacy in the home of a third party? Outside? In a barn?
iv. The basic principals are as follows:
1. Public Exception: A person has no reasonable expectation of privacy in information exposed to the public. What a person only exposes to the public is not private. This last point is true even if it is only theoretically possible for the public to be there (Riley); the principal applies even if one is forced to expose the information to third parties, namely there is no viable choice. (In some communities there is no alternative to putting your trash in containers for pick-up).
2. Information disclosed to a third party is akin to information disclosed to the public: people assume the risk that when they provide information to a third party, the third party will provide such information to the government.
3. Enhancing the Senses: Hearing and sight may be enhanced by common devices without making the conduct a search.
4. Investigative techniques only capable of detecting contraband are not a search. (dog sniffs—see US v. Place on pp. 269 for dogs sniffing personal effects & Illinois v. Caballes on pp. 270 for dogs sniffing a vehicle during a stop)
5. There must be government activity. Products of a private search can be turned over to the police and used by the prosecution. Actions of private persons can be deemed actions of the state if the government knew, acquiesced or encouraged the private behavior. Note: There may be an exception if the private person is acting at the encouragement of the government (i.e. the individual has become an agent of the government).
v. Effects (luggage, book-bag, purse, ect.): Bond v. US—Agents boarded a Greyhound bus and began patting down soft luggage. Agent felt brick-like object in defendant’s back and asked if he could open the back & defendant agreed. Inside was a brick of meth. Court held: “(1) A person’s personal luggage is clearly an ‘effect’ protected by the Fourth Amendment; (2) The government’s physically invasive inspection is simply more intrusive than purely visual inspection; and (3) Travelers’ keep their carry-on bags close at hand and they do not expect that they’re bags will be physically inspected.
1. Question: Is there still an expectation of privacy in “effects” in airports where security is ever heightened?
b. Where there is NO Right of Privacy
i. Greenwood (Trash Bag Case)- The police cannot be expected to avert their eyes to criminal activity that could have been observed by any member of the public.
1. When property has been abandoned, or entrusted to a 3rd party there is no longer a reasonable expectation of privacy.
a. Note: This doesn’t necessarily apply to the home- entrusted to a 3rd party doesn’t mean no right of privacy.
2. This voluntary transfer of information to a 3rd party also applies to information given to INFORMANTS and individuals wearing wires.
ii. Oliver (Open Fields Case)- No requirement to get a warrant to enter private property if the property is located in an open field. (No Warrant)
1. Open fields are not areas where ‘intimate activities occur’ which the 4th Amendment seeks to protect.
2. Open fields are different from curtilage, which is afforded 4th Amendment protection because it is considered to be a ‘part of the home’. (Warrant Required)
3. Curtilage- Court views as an annex of the home (4th Amendment protection applies)
a. Proximity of the area to the home
b. Whether the area is included within an enclosure surrounding the home
c. The nature of the uses to which the area is put
d. The steps taken by resident to protect the area from public observation
iii. Riley (Public Observation: Helicopter Over Greenhouse Case)- The Court found that homeowners need to take affirmative steps to protect their privacy. The court consider
e suppressed the evidence b/c it did not satisfy the veracity prong of the Spinelli two-pronged test. The court overruled Spinelli and set out a new standard.
b. Totality of the circumstances; balance all information to determine reliability of evidence.
c. Validity of information- What is the basis of knowledge?
i. First hand observation or hearsay?
d. Veracity of information
i. Police assumed to be truth due to oath taken
ii. If informant, look at track record, reliability and motives for disclosing information
iii. Has the information been corroborated?
e. Probable Cause Standard:
i. “The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is to ensure that the magistrate had a substantial basis for concluding that probable cause existed.
ii. An affidavit must provide the magistrate with a substantial basis for determining the existence of probable cause and a wholly conclusory statement is no basis at all for making a judgment of regarding probable cause.
iii. “The probable-cause standard is incapable of precise definition or quantification because it deals with probabilities and depends on the totality of the circumstances. The substance of all the definitions of probable cause is a reasonable ground for belief of guilt and that the belief of guilt must be particularized with respect to the person to be searched or seized.” (Maryland v. Pringle)
1. No one is guilty by association. Probable cause must be particularized to a specific suspect(s). (See Ybarra v. Illinois: Where police patted down every customer in a tavern, even though their warrant only applied to searching the tavern itself and the bartender.)
