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Criminal Procedure
South Texas College of Law Houston
Burnett, Catherine Greene

n      6th Amendment right to a trial by jury incorporated to the states. Duncan v. Louisiana.
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?
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)
n      Basics
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
o       Affidavit
§         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.
o       Warrant
Signed by magistrate and answers the who, what and where.