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

Criminal Procedure

Professor Thomas, Fall 2016

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

A. Failures

1. Investigation Failures

2. Trial Failures

B. The Norms of the Criminal Process

II. The Fourth Amendment

A. An Overview

1. General Fourth Amendment Principles

a. Standing

b. The Exclusionary Rule

c. Abuse of Discretion Standard

d. Threshold of Governmental Action

e. Grand Jury Subpoena

f. Broader Rights Possible Under State Constitution

2. The Reach of the Fourth Amendment

3. The Birth of the Exclusionary Rule

B. Passing the Threshold of the Fourth Amendment

1. What is a Search?

a. General Principles

b. The Katz Doctrine in Application

i. Curtilage

ii. Dog Sniffs

c. Katz & The New Technology: Back to the Future?

i. The Beeper Cases – Seizure of Persons v. Seizure of Property

ii. What is a Seizure?

C. The Substance of the Fourth Amendment

1. Probable Cause

a. The Aguilar-Spinelli Test

b. Overruling Spinelli – Totality of the Circumstances

i. Keeping an Informant Confidential

ii. How probable is probable cause?

iii. Anticipatory Warrants

2. Arrest Warrants

a. Place of Arrest

b. Arrest in Third Party Residence

c. When are Circumstances Exigent?

d. Use of Force

2. Search Warrants

a. Elements of a Valid Search Warrant

b. Exceptions of a Search Warrant

i. Scope of the Search of a Premises

ii. Searching Persons During the Execution of a Warrant

iii. Seizure of Persons During Warranted Searches

3. Warrant Clauses: When are Warrants Required?

a. Exigent Circumstances

i. Minor Offenses

ii. Search/Seizure Incident to Arrest

iii. Cars

b. Searches Incident to an Arrest

i. Generally

ii. Arrests of Automobile Occupants

iii. Pretextual Stops and Arrests, Particularly in Automobiles

c. Cars & Containers

4. Plain View (and Touch Doctrines)

5. Consent

i. Withdrawal and Limiting of Consent

ii. Consent by Co-Occupant or Co-Tenant

iii. Scope of Consent

6. Reasonableness Clause: The Diminishing Roles of Warrants & Probable Cause

a. The Terry Doctrine

i. Terry v. Ohio: The Opinion

ii. Drawing Lines: Terry Seizures v. De Facto Arrests

iii. Drawing Lines: Seizure v. Non-Seizure Encounters

b. Reasonable Suspicion

c. Extending the Terry Doctrine

i. Car Frisks – A Review

d. Reasonable Suspicion in a “Special Needs” Context

D. Remedies for Fourth Amendment Violations

1. Standing

Who Has Standing?

2. The Exclusionary Rule

a. The Rule is Recognized

b. Scope of Exclusionary Rule: Independent Source and Inevitable Discovery Doctrines

i. Independent Source (or Fruit of an UN-poisonous tree)

ii. Inevitable Discovery

c. Attenuation (of Dissipation of Taint) Doctrine – Exception to Exclusionary Rule

3. The Exclusionary Rule is Narrowed (And on Life Support?) – MORE EXCEPTIONS!

a. The Good Faith Exception

b. Knock & Announce Rule

c. Isolated Police Negligence → Good Faith Exception

d. Reliance on Legal Precedent → Good Faith Exception

4. Evolution of the Exclusionary Rule – A Summary

III. Confessions: The Voluntariness Requirement

A. Introduction to Coerced Confessions

B. Torture & Confessions

C. Police Interrogations without Torture

1. Involuntariness

2. No State Action

3. Coercion through Deceptive Actors

IV. Police Interrogation: The Self-Incrimination Clause

A. The Text and the Road to Miranda

B. Miranda Spawns a New Law of Confessions

1. Overview

3. Miranda!!

4. Constitutional Status of Miranda

C. Stormy Seas for Miranda – The Doctrinal Reactions to Miranda: Clarifying Miranda’s Status

1. Public Safety Exception

2. Miranda & Fruits

D. Miranda Custody

E. Miranda Interrogation

F. Waiver and Invocation of Miranda Rights

1. Waiver

2. Invocation

G. Miranda Analysis

V. Police Interrogation: The Sixth Amendment Right to Counsel

A. Eliciting Statements in the Absence of Counsel

B. Massiah Waiver

C. Massiah & Miranda: A Divergence

D. Massiah’s Analytical Core – Statements Admitted for Impeachment Purposes

1. Introduction Evidence for Impeachment – 4th, 5th, 6th, and Miranda!

E. Massiah v. Miranda

VI. Eyewitness Identification Procedures

A. Right to Counsel

B. Due Process of Law

VII. The Role of Defense Counsel

A. The Right to Have Appointed Counsel

B. The Right to Decide Whether to Have Counsel

II. The Fourth Amendment

The right of 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 protects persons against unreasonable arrests or other seizures, as well as unreasonable searches. In addition, when a warrant is required, it must comply with these constitutional requirements!

A. An Overview

Fourth Amendment Analysis:

1. Was there a Fourth Amendment violation?

2. What is the remedy for such violation?

There are two issues relating to the 4th amendment’s scope

1. The category of persons that are searched

2. The nature of persons who do the searching and seizing.


“The people” includes people living here lawfully and unlawfully as long as they pay taxes..etc. It does not include people living in other countries or people like Verdugo who was arrested in Mex. And they searched his house in Mex. His argument was that b/c he was on U.S. soil his 4th amendment right was abrogated. He is not a citizen the 4th amendment does not apply to him.

1. General Fourth Amendment Principles

a. Standing

Fourth Amendment rights are personal and may not be asserted vicariously. A defendant cannot successfully challenge governmental conduct as a violation of the Fourth Amendment protection against unreasonable searches and seizures unless the defendant himself has been seized or he has a reasonable expectation of privacy with regard to the place searched or item seized. It is not enough that the introduction as evidence of an item seized m

here differentiated between evidence seized by the federal government (US Marshal) and the state government (local police) and allowed the state-obtained evidence to remain.

o Later, court ruled that state officers acting alone BUT ON BEHALF of a federal agency cannot obtain evidence without a warrant.

o Silvethorne- Similar facts as Weeks, but instead they returned the property back to the defendant but before they did, they took copies of it. The court held here that permitting derivatives (copies) would encourage police to circumvent the 4th amendment, so therefore the illegally copied evidence is tainted & therefore inadmissiable!

o Boyd v. U.S.- A state statute required that if there was a suspicion of fraud, documents were required to be turned over. Holding says that This is not a search and seizure case because no one is searching or seizing, it was just a statute that required you to turn the documents over. The court held that this amounted to self-incrimination.

Wolf v. Colorado (1949) – In a prosecution in state court for a state crime, the 14th Amendment does not forbid the admission of evidence obtained by unreasonable search and seizure.

● HOWEVER, evidence obtained by means that “shock the conscience” cannot be used in prosecution (taking D to hospital to pump stomach and obtain drugs to use as evidence – Rochin v. California

Mapp v. Ohio (1961) – In a prosecution in federal OR state court, the Fourth Amendment (by application of the 14th Amendment) forbids the admission of evidence obtained by an unreasonable search and seizure.

● Police knocked, no one answered, forcibly opened home without warrant, and when confronted by woman gave her papers claiming they were a warrant (when they weren’t) and forced her to wait outside. Searched her entire home and found obscene material in the basement. The state arged that under the decision in Wolf (no exclusionary rule required by states) the evidence was still admissible.

● SCOTUS disagreed, reasoning that (1) most states adopted an exclusionary rule post-Wolf & (2) the “other means of protection” afforded to the rights of privacy by the states were failing to do the job…THUS,

● ALL EVIDENCE obtained by searches and seizures in violation of the 4th are inadmissible in state OR federal court. – Punishing the police for doing a bad job/lying! “If a governement becomes a lawbreaker, it breeds contempt for law (unreasonable searches should be deterred).

● Note: This was the perfect case for the SC to rule that the exclusionary rule applies to the states because here the accused is not a murderer or a drug dealer, just a lady with porn magazines