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

CRIMINAL PROCEDURE BOOK OUTLINE
· THE CRIMINAL PROCESS: FAILURE, CHOICES, AND LEGITIMACY
o Failures
o Powell
§ FACTS
· two black men accused of rape of two white girls, entered pleas of not guilty, trial took one day to come back with guilty verdicts
§ ISSUE
· Were the defendants denied the right of counsel, and if so, does such denial infringe the due process clause of the 14th
§ RULE
· Yes, they were not provided adequate counsel as required by the 14th
§ REASONING
· When indicted not asked if the had or could afford an attorney
· defendant should be afforded a fair opportunity to secure counsel of his own choice
· at first trial no one was present to defend denfendants, it was not until that moment that an atty rose and stated that he would defend them, thus they were prevented from receiving any pretrial preparation which is as vital as representation during the trial
· the atty who rose knew nothing of local procedure or law as he was from a different state and no time was given to prepare at that point but the trial just began
§ HOLD
· Considering the above facts, defendants were not accorded the right to counsel in any material way
· FOURTH AMENDMENT: AN OVERVIEW
o The Text and its Mysteries
§ 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.
o The Fourth Amendment and the States
o Wolf
§ FACTS
· none given
§ ISSUE
· Do the due process evidence requirements of the 4th imported via the 14th apply to state courts applying state law
§ RULE
· No, however, should a state sanction police activity that runs contrary to the concept of ordered liberty, it will be overruled by this court
§ REASONING
· 14th does not import the bill of rights against the states
· However, Palko – Due process clause exacts from the states all that is “implicit in the concept of ordered liberty”
· due process is a living principle and will change with time
o THE REACH OF THE FOURTH AMENDMENT
§ Verdugo – mexican arrested and brought to united states, DEA searched his home in mexico without warrant, the issue was whether the fourth applies to searches and seizures by US agents of property owned by alien located in foreign country, held – no because he was not among “the people” to be protected by the fourth
§ Burdeau – fourth only limits government searches, not private citizen action, thus PI finds evidence of a murder in a house that would not be legal for a government official to seize, he can seize, give to cops, they can use it, and suspect cannot protest
· but if cops instigate search it is inadmissible
· CHAPTER 3 – PASSING THE THRESHOLD OF THE FOURTH AMENDMENT
o Fourth 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.”
o Fourth only controls searches and seizures and only those that effect houses, papers, effects
o WHAT IS A SEARCH?
o General Principles
§ KATZ v.UNITED STA

– textualist approach, 4th only governs papers, houses, effects
§ NOTES
· Harlans concurance is used to determine whether or not a search has occurred
· Searches conducted without a search warrant are per se unreasonable under the 4th unless certain exceptions apply
o the lesson is that the search would have been legal had the FBI gotten a warrant before bugging the telephone booth
o THE KATZ DOCTRINE IN APPLICATION
o United States v. White
§ FACTS
· D told informant of illegal activities, agent was hiding in informants closet, and informant also was wearing a wire
§ ISSUE
· Does 4th bar testimony related to agents between by informant, and which the same was overheard by agents via a wire worn by informant
o “What expectations of privacy are constitutionally justifiable – what expectations the 4th will protect in the absence of a warrant.”
§ RULE
· “If the conduct and revelations of an agent operating without electronic equipment do not invade the Ds con justifiable expecations of privacy, neither does a simultaneous recording of the same conversations made by the agent or by others from transmissions received from the agent to whom the D is talking and whose trustworthiness the D necessarily risks.”
o BAD GUY BEWARE OF WHOM YOU SPEAK TO NO GUARANTEE OF PRIVACY