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Criminal Procedure
Rutgers University, Newark School of Law
Thomas, George C.



· Powell v. Alabama (1932)

o Facts: 6 black men accused of raping 2 white women in Scottsboro, AL. No counsel specifically appointed. 3 trials—all ∆s found guilty.

o Holding: ∆s were not accorded their right to counsel in any substantive sense—having someone appear on day of trial or having someone barred in another state offer to help is inadequate. ∆s are given a new trial.

o Rule: In a capital case, if ∆ = unable to employ (indigent) counsel because of his own ignorance, etc. it is the duty of the court—whether requested or not—to assign counsel as a requisite of due process.

· Brown v. Mississippi (1936)

o Facts: ∆ convicted after coerced confession was introduced at trial. Confession was procedure by torture, deputy admitted to beating ∆ until he agreed with details.

o Holding: Failure of court to exclude confessions = sufficient to reverse conviction

o Rule: 14th Am is violated when confession obtained by torture is used to convict

Seeking Legitimacy in the 14th Am

· Duncan v. Louisiana (1968)

o Facts: ∆ sought jury trial for simple assault charge. Judge denied because LA constitution only granted jury trials for capital cases or cases with hard labor sent.

o Rule/Test: Is right fundamental—essential to fair trial and principles of liberty and justice? Yes—necessary to prevent oppression by gov’t.

o Holding: Trial by jury in criminal cases = fundamental. 14th Am guarantees a right of jury trial in all criminal cases that were they to be tried in fed court, would come within 6th Am’s guarantee.

*Right to grand jury indictment is one thing the Court has never held to be fundamental—still not required today.

Norms of the Criminal Process

Accuracy—how important is it that the criminal justice system get it right?

Innocence-weighted procedural approach

Fairness—competes with accuracy

Brady—turn over exculpatory evidence; Miranda—right to remain silent

Limited Gov’t Provisions: Separate people from gov’t

Balance private autonomy against accuracy-impeding provision

Efficiency—Costs of running the criminal justice system

Ultimate Goal: Protect citizens (from crime, anarchy, attack)


The right of people to be secure in their persons, houses, 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, particularly describing the place to be searched, and the persons or things seized.


Generally, a person can be searched only if there is reason to believe that person committed a crime or has evidence of a crime

A consistent theme in Fourth Amendment cases is the balancing test

Balancing of the individual privacy interests with the government’s need for effective law enforcement techniques

Searches conducted outside the judicial process are per se unreasonable, subject only to a few exceptions:

Exigent Circumstances

Hot Pursuit


What a person knowingly exposes to the public, even in his own home or office, is not subject to 4th Am protection (Katz)

Presumptively reasonable

Property interests do not control the right of the government to search and seize

A person’s HOME = core of 4th Am protection; In car searches, court is much more relaxed

Who it Protects: (Remember to conduct STANDING analysis before analyzing illegality)

4th Am protects PEOPLE, not places (Katz)—“the people” implies a collective

US Citizens (US v. Verdugo-Urquidez cb 64)

∆ (Mexican citizen arrested in Mexico and brought to US) could not invoke 4th Amendment’s protections, because he was not one of the “people” contemplated by Framers

Who it Applies to:

Applies only to actions by government officials or those acting in concert with the government (agents) and only within US. (Burdeau v. McDowell cb 65)

Applies to individuals acting at direction of gov’t too—e.g. airline employee who opens traveler’s suitcase because police told him too.

What it Protects:

· The Fourth Amendment protects “the security a man relies upon when he places himself or his property within a constitutionally protected area, be it his home or his office, his hotel room or his automobile. There he is protected from unwarranted government intrusion. And when he puts something in his filing cabinet, in his desk drawer, or in his pocket, he has a right to know it will be secure from an unreasonable search or an unreasonable seizure.”

o Hoffa v. US (1966): false-friend case

· Court applied property law concepts at first—“search” was only a violation of 4th Am if it amounted to “trespass.”

In sum, the 4th Am is implicated only when a public actor intrudes into an area deemed one in which the citizen may reasonably expect privacy.

What is a Search?

The Test – Analytical Starting Point

Was there a search?

Was ∆’s objectively reasonable expectation of privacy violated? [Subj + Obj]

Presumption of reasonableness if warrant + PC

If no, exception to warrant requirement?

Was it a consent search?

Was it an administrative search?

If no, was it a stop & frisk? (Analyze each separately)

Does the person have standing to challenge the search/seizure/stop/frisk as 4th Am violation?

If yes, what remedies are available? Evidence excluded? Civil remedies?

à Pre-1967, definition was closely tied to property law concepts—trespass. But as technology became more sophisticated, this definition became outdated and underinclusive.

Katz v. US (1967) cb 84 “Telephone boo

ule: 4th Am affords no protection to a “wrongdoers misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.”

Government’s use of “false friend” = constitutional

Assumption of Risk—subjective expectation of privacy = unreasonable

à Lewis v. US (1966)—no warrant needed if undercover goes to buy narcotics

à Lopez v. US (1963)—no warrant needed if informant wears wire

à On Lee (1952)—sighting of an objected in plain view from lawful vantage point, even if using objects that magnify a distant object—i.e. binoculars—is not a search

Smith v. Maryland (1979) cb 103 “Pen Register”/Assumption of Risk

o Facts: ∆ = robbery suspect; pen register installed, showed ∆ was making calls to victim. Register reveals #s dialed, not contents of conversation.

o Rule: “Search” within the meaning of the 4th Am occurs when:

§ 1) An individual exhibits an actual (subjective) expectation of privacy)

§ 2) Expectation of privacy is recognized by society as reasonable

o Holding: Installation of pen register did NOT constitute a search. Extends assumption of risk analysis to institutional third parties.

§ 1) Court doubts anyone actually entertains subjective expectation of privacy re: numbers they dial (but assumes this as true for sake of argument)

§ 2) Even if ∆ had a subjective expectation of privacy, it is not one that society is prepared to recognize as reasonable.

US v. Place (1983): cb 113 “Dog Sniff of Luggage”

o Facts: fed agents subjected ∆’s luggage to “sniff test” by dog

o Holding: dog sniff is NOT a search w/in meaning of 4th Am

§ Non-intrusive: Didn’t req. opening luggage & was conducted in public place.

§ Canine sniff is “sui generis” (unique, one of a kind) Info revealed by test = extremely limited (only discloses presence or absence of narcotics)

Illinois v. Caballes (2005) cb 113 “Extends Place to Dog Sniff of Car”

o Allows dog sniff of outside of auto, after car is lawfully stopped for traffic violation.

US v. Knotts (1983):

o Facts: beeper placed in drum of chloroform, showed ∆ driving along public roads

o Holding: No 4th violation—no reasonable expectation of privacy in movement along public roads and beeper did not reveal anything that could not be observed with plain eye (drum remained outside ∆’s cabin)