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

a.       Most federal constitutional provisions concerning criminal procedure are binding on state proceedings as well as federal ones.
b.      The states are however, free to develop their own procedures for dealing with criminal prosecutions, as long as those do not violate the federal constitution. 
c.       Bill of rights NOW mostly applicable to states
                                                              i.      Barron v. Baltimore – 1833 – held that the first 8 amendments not applicable to states. 
                                                            ii.      In 1868 14th amendment was ratified which said that the amendments applies to the states as well.
1.      The S.Ct. has stated that only those safeguards in the BoR that are “implicit in the concept of ordered liberty” are applicable to the states via the 14th Amendment.   In order to determine if something is “implicit in the concept of ordered liberty”, it must be “so rooted in the traditions & collective conscience of the people so as to be ranked as fundamental”.
                                                          iii.      Amendments not applicable to the states:
1.      Eighth amendment’s guarantee against excessive bail
2.      Fifth amendment’s right to a grand jury indictment. (grand jury is a panel of about 23 people appointed who hear evidence of criminal accusations in possible felonies and determine if there is enough to evidence to indict the D and try him for the crime).
d.      Right to counsel – Powell v. Alabama 1931 – In a capital case, where the D is unable to employ counsel and is incapable of adequately defending himself, the due process clause of the 14th amendment requires that effective counsel be appointed for him.
                                                              i.      Note 3 p. 24 – case where D was accused of robbery and was of normal intelligence, was able to take care of his own interests at trial, had been to court before – powell’s holding didn’t apply.
e.       Equal protection – scotsboro case – held that it violated the equal protection clause of the fourteenth amendment to have a jury that excluded blacks.
a.       Arrest: When a police officer has probable cause to believe that a suspect has committed a crime, the officer makes an arrest. An arrest may occur either with or without a warrant (most are without a warrant). 
b.      Booking – the suspect undergoes booking at the police station which includes entering information about him into a police blotter, photographing and fingerprinting him.
c.       Filing compliant – A prosecutor decides whether there is enough evidence to file charges, if so, the prosecutor prepares a complaint
d.      First appearance – Suspect is brought before a magistrate. Magistrate informs D of the charges, notifies him that he has the right to counsel, and sets bail or releases D without bail.
e.       Preliminary hearing – If the case is a felony case, a “preliminary hearing” is held.  Usually involves live witnesses so the magistrate can determine whether there is probable cause to believe that D committed the crime charged
f.       Filing of indictment or information – A grand jury hears the prosecutor’s evidence and determines whether to issue an indictment. In a non-grand-jury state, the prosecutor prepares an “information” reciting the charges
g.       Arraignment – After indictment or information has been filed, D brought before the trial court and asked to plead innocent or guilty
h.      Pre-trial motions – defense counsel now makes pre trial motions.
i.        Trial – If charge is a felony, or a misdemeanor punishable by more than 6 months in prison, D has right to have the case tried before a jury.
j.        Sentencing – Usually by the judge, not the jury
k.      Appeals  – A convicted D in then entitled to appeal ( eg – on the grounds that the evidence admitted against him at trial was the result of an unconstitutional search)
l.        Post-conviction remedies – Challenges to convictions through federal-court habeas corpus procedures.
                                                              i.      D can bring a habeus corpus action only after he has been convicted and has exhausted his state appellate remedies. If the federal district judge finds that the conviction was obtained through a violation of the D’s constitutional rights, he can order the D released usually subject to a new trial.
I.                    Is it a search or seizure?
a.       NO:     then outside of 4th amendment
b.      YES:    Is the search or seizure reasonable/valid? (Reasonable is one done with warrant or exceptions)
                                                              i.      Was there probable cause?
                                                            ii.      Was a warrant issued?
1.      YES:    Is the warrant valid? (5 requirements)
a.       YES = Search ok
2.      NO = Is there a valid exception to warrant requirement? (8 exceptions)
a.       YES = Search is ok
b.      NO =   invalid search
II.                 4th amendment – 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.
a.       “Persons” – includes:
                                                              i.      (1) D’s body, as a whole (ex. as when his is arrested)
                                                            ii.      (2) The exterior of D’s body, including his clothing (ex. as when he is patted down for weapons or the contents of his clothing are searched; AND
                                                          iii.      (3) The interior of D’s body (ex. as when blood is extracted to test for alcohol content)
b.      “Houses” – includes virtually all structures that people commonly uses as a residence (including hotel rooms/apartments). It also includes buildings connected to the residence (ex. garages). It also includes cartilage of the home.
c.       “Papers” – includes personal items such as letters & diaries, as well as impersonal business records.
d.      “Effects” – includes cars, luggage & other containers, clothing, weapons & even fruits of a crime. It is the residual component of the phrase.
e.       4th amendment limitation is only on the government – does not apply to a security guard searching an office or a neighbor searching your home. Applies to these people only if they are deemed an agent of the government.
f.       Problem 1(a) p. 48 – if police aim a raidar gun that tracks illegal substances at cars on the highway is this an illegal way of obtaining a warrant?
                                                              i.      Probably not b/c you don’t really have a right to be secure.
SEARCH: Was there a search?
In order to invoke your 4th amendment rights, there must be either a search or seizure. As such, was there a search? A search can be determined by two factors, according to Katz: (1) Did the person have a subjective expectation of privacy; and (2) Would society recognize this activity as private?
       Areas and people protected by the fourth amendment:
Katz expectation of privacy: A fourth amendment search or seizure only takes place when a person’s reasonable expectation of privacy has been violated. Basically did D assume the risk??
1.      Two part test: Did conduct intrude on a reasonable expectation of privacy?
a.       Subjective: Did the person have a subjective expectation of privacy? 
b.      Objective: Does society recognize this activity as reasonably private (society is willing to accept there is an expectation under the circumstances?
2.      Waiver of privacy rights – a person’s conduct may mean that he has no reasonable expectation of privacy in a particular situation. If so, no fourth amendment search or seizure will result, even if the police are doing something that a non-lawyer would think of as being a search or seizure. 
a.       Ex – abandoned property, things seen from an aerial view, the perspective of a person stationed on public property, things a person says or does while in public, information the police learn by use of other sense whil police are in a place they have a right to be in (ex dog sniffing drugs).
3.      Significance of trespass – if the police have committed a trespass or a physical intrusion against a person’s property, their conduct is more likely to be found to violate the person’s reasonable expectation of privacy than if no trespass or physical intrusion takes places.
a.       Squeezing luggage – Bond v. US – border guards walk onto a bus which they have a right to do and then squeeze each passengers luggage in the overhead luggage rack. B/c this squeezing is a physical intrusion it violates the luggage owner’s reasonable expectation of privacy and is therefore a fourth amendment search. Yes a search.
b.      Katz – If D had a reasonable expectation that his possessions, conduct or words would remain private, the absence of police trespass will be irrelevant. FBI agents place electronic eavesdropping equipment on the outside of a public telephone booth from which D, a bookmaker conducted business. Even though D made his phone calls on public property, and there was no trespass by the agents, D’s reasonable expectation of privacy was violated and therefore there was a fourth amendment search.
c.       Note 2 P. 80 – Government hired a lip reader

cy in the apartment. Therefore Ds fourth amendment rights couldn’t have been violated even if X’s rights were violated.
I.       Plain view doctrine – the police do not commit a fourth amen dment search where they see an object that is in plain view of an officer who has a right to be in the position to have that view.
A.    Distinguished from Seizure – the fact that the officer may have plain view of an item does not mean that they ay necessarily seize that item as evidence. Unless the officer is already legally in a place where he can touch the item, the fact that he sees it will not dispense with the need for a warrant to seize the item
1.      Ex – If officer sees D strangle V with a stocking, it does not mean that he can automatically enter D’s house without a warrant and seize the stocking.
B.     Use of Mechanical Devices – if police stand on public property and use a mechanical device to btain the view of D or his property this will not be a search.
1.      Flashlights – if an officer standing on public property uses a flashlight to obtain a view of D or his property this will be plain view and therefore not a search.
2.      Electronic beeper – police may attach a beeper on a vehicle and use it to follow the vehicle and would not constitute a search.
C.     Aerial observation – when the police use an aircraft to view D’s property from the air, anything the police can see with the naked eye falls within the plain view doctrine as long as the aircraft is in public navigable airspace.
D.    Dog sniffing – not a search b/c you don’t have a reasonable expectation of privacy from smells that emanate from your bag. US v. Place
E.     High Tech devices not in general public use – if government obtains special high tech devices, not in general civilian use, and employs them from public places to gain views that could not be had by the naked eye, the use of such devices will be considered a search.
1.      Kyllo v. US – YES SEARCH. Owned a home and was growing marijuana inside and to grow pot inside you need heat lamps. So agents found out that he was doing this and in order to get a warrant they needed probable cause so took a thermal imaginer and scanned his house to see if some rooms were warmer than others. Found that certain areas of the house were relatively hot compared to the rest of the house which inferred that he had these lights used for marijuana. They turned out to be right.
2.      Yes, Search. The heat emanating is being detected by technology not readily available to the public. By using the technology they are able to learn details that others are not.
3.      Different then dog sniffing case b/c Dog can only tell you if they smell drugs whereas the thermal imaginer tells you where the house is hot which doesn’t necessarily mean that there are drugs being grown.
F.      Plain touch – if an officer is conducting a legal pat-down of a suspect under the stop and frisk doctrine, and touches something that feels like contraband, the officer may seize it under a plain touch analog to the plain view.
1.      Plain touch only applies if the police has a right to do the touching in the first place. Ex – Bond v. US case above.
G.    Police on D’s property – Plain view doctrine applies when the police are lawfully on the D’s property. For example if the police come to D’s house to make a lawful arrest. Any observation they make while in the ordinary process of arresting him does not constitute a fourth amendment search.
1.      But this does not allow police to open closed containers or packages or move items to get a better view.
II.    SEIZURE: Was there a seizure?
A.    SEIZURE OF PROPERTY – in contrast to a search, which affects a person’s privacy interest, a seizure of property invades a person’s possessory interest in that property. Occurs when the government puts its hands on a piece of property and takes the property (exercise dominion and control over it).