CRIM PRO OUTLINE
n 6th Amendment right to a trial by jury incorporated to the states. Duncan v. Louisiana.
SEARCH AND SEIZURE
n Deals with the 4th Amendment and reasonable expectation of privacy
n Process to analyzing Fourth Amendment Claims:
o Start by asking if gov’t conduct was search or a seizure
§ Search – apply the Katz test
§ Seizure – significant/meaningful interference with a person’s possession of property.
o If there is search OR seizure, ask:
§ Was it reasonable?
§ Was there a warrant?
o If NO search/seizure, then Fourth doesn’t apply.
n For reasonableness clause to apply person must be part of “the people.”
o The people interpreted as meant to protect people of the U.S. including illegal aliens, resident aliens, citizens, and those w/ sufficient connections to the community (paying taxes, family here, contribute to economy).
o Must have state action – does not apply to private actors.
n “No warrant shall issue” clause
o shows how you go about getting warrant
o Requires probable cause (fair probability)
n Exclusionary rule we ask 1. Was 4th violated and 2. What is the appropriate remedy?
n APPLYING THE KATZ TEST
o The Katz test asks:
§ 1. Did the person have an actual (subjective) expectation of privacy?
§ 2. Is that expectation one society is prepared to recognize as reasonable?
o You never have a privacy interest in criminal/illegal activity. If only thing activity can reveal is illegal activity then it’s not a search.
o Katz in open fields under Oliver
§ No demand for privacy in outdoor activities unless immediately surrounding the home.
§ No societal interest in protecting activities in open fields
§ Fences and no trespassing signs do not bar public from viewing open fields
§ Only curtilage gets 4th amendment protection
§ Curtilage has reasonable expectation only to extent one would expect to have being near the home.
§ Curtilage analyzed by 4 factors:
· Proximity of area to the home
· Is area included in enclosure surrounding home
· Nature of use to which area is put (make it like a house)
· Steps taken by person to protect area from observation by people walking by
o Public Access areas – theory is if area open to the public then it’s open to police
§ Assumption of risk if you have conversation in public
§ Financial Records – Miller says 4th not implicated by subpoena under idea that if bank can see documents, so can police. No REP b/c any bank employee can see your records.
§ Pen Register – Smith says gov’t allowed to monitor numbers you dial b/c phone co. knows the num
Less likely to be gov’t action if random occurrence such as subpoena
o Jails, schools and gov’t – diminished REP
§ Hudson – no REP for prisoner in cell even on personal self b/c subject to searches all the time
§ New Jersey – there’s REP for school students but not absolute and less than public
§ Ortega – gov’t employees do have REP at workplace so doesn’t matter they work for gov’t.
WARRANTS (cardinal principal of 4th Amendment)
o Search w/out warrant is presumed unreasonable
o Warrants require probable cause
o Police can make inferences but done through magistrate b/c they have no personal interest in the outcome
o Benefits – makes record of probable cause and insulates police from claim of fabrication
n How a warrant works
§ Prepared by police officer and sworn to, it sets out grounds for why officer believes there’s probable cause.
§ Magistrate reviews only 4 corners of document and decides whether there’s probable cause.
Signed by magistrate and answers the who, what and where.