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Criminal Procedure
South Texas College of Law Houston
Corn, Geoffrey S.

Corn Criminal Procedure Spring ’12
1.        Criminal Procedure: Definition and Purpose
a.        Guarantees that justice is the impetus behind the search for guilt
                                     i.            Ensures the satisfaction of the fundamental procedural protections guaranteed by the Constitution 
2.                 There is a difference between legal justice and actual justice
3.                 Presumption of Innocence – State has the duty to treat the D as if innocent until they are proven guilty
4.                 Look at
 .         What triggers the Rule
a.        Scope of the Rule
b.        Remedy for the Rule
1.        The 14th Amendment is the conduit by which the Bill of Rights applies to the states.
2.        Fundamental Fairness was initially the only test for state policy – does it shock the conscience?
3.        When should a right apply to states:
a.        A state may not abrogate those rights that are “fundamental to our concept of ordered liberty” without due process of law. Duncan v. Louisiana
b.        Whether a right is among those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.
2.        Incorporated rights:
a.        4th Amendment
                                     i.            Prohibition against unreasonable searches and seizures. Wolf v. Colorado & Weeks v US
                                   ii.            Exclusionary rule requiring that the result of a 4th Amendment violation not be used as evidence against the defendant. Mapp v. Ohio
b.        5th Amendment
                                     i.            Privilege against compulsory self-incrimination
                                   ii.            Prohibition against double jeopardy
c.        6th Amendment
                                     i.            Right to a speedy, public trial
                                   ii.            Right to trial by jury. Duncan v. Louisiana
                                  iii.            Right to confront witnesses
                                  iv.            Right to assistance of counsel in felony cases or misdemeanor cases where imprisonment may be imposed. Gideon v. Wainwright
d.        8th Amendment
                                     i.            Prohibition against cruel and unusual punishment
3.        Not Incorporated
 .         12 person jury
a.        unanimous verdict
b.        Indictment by a grand jury
Powell v. Alabama
1.       A D could’ve had all the incidents of a fair trial, none of it mattered w/o effective representation of counsel.
a.        I don’t care what rules you have, if you don’t have a lawyer to enforce them, then it doesn’t matter.
Habeas v. Appeal
2.       When it has 2 names, then it’s a writ of habeas.
3.       When it has US or state name, then its an appeal.
1.       “Right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, and no warrants shall issue, but upon probable cause, and particularly describing the place to be searched, and persons or things to be seized.”
2.       4th Amd only limits government action.
a)       Protect against arbitrary gov’t power.
·         Arbitrary gov’t action is the antithesis of due process.
3.       To be protected, must be part of “the people” – have sufficient connection to U.S. Seizure of property of an extradited foreigner would not trigger 4th Amd.
4.       Government interest in law enforcement v. individual privacy
5.       Reasonableness Clause – touchstone of the 4th Amd.
a)       To satisfy reasonableness requirement
·         Get a warrant – presumption of reasonableness
·         Satisfy an exception (e.g., exigent circumstances)
b)       Warrant is a procedural component of rea’b.
c)        Probable cause is a substantive component of rea’b.
d)       To rebut reasonableness even with a warrant
·         Probable cause invalid
·         Magistrate not neutral and detached
i)         Magistrate has a dog in fight, very hard to win on.
ii)       Good faith exception if police didn’t know that magistrate wasn’t neutral
·         Executed in unrea’b manner (e.g., knock-and-announce rule)
i)         Knock and announce rule
a.       In order to be rea’b, you must knock and announce your presence.
ii)       Interest Protected by Knock and Announce Rule
a.       Embarrassment, property interest, life
iii)      Police countervailing interest
a.       Preservation of evidence, flight, and police safety
iv)      Exception: Exigent Circumstances – No-knock entry must be based on valid exigency – danger, destruction of evidence that police have to be able to articulate—rea’b suspicion.
6.       4th Amd analysis:
a)       Has 4th Amd been triggered?
·         Govt action
·         Directed at “the people”
·         Intrusion upon a REP
b)       What is reasonable?
c)        Does the Exclusionary Rule apply?
7.       Prime Directive of 4th Amd:  Get a warrant unless you can't
8.       People
a)       Person is broader term than people
b)       Individual that’s claiming the remedy have a meaningful connection to US
·         Means citizen, even a citizen living outside of US
·         Resident alien-meaningful connection
·         Non-resident alien=not sure
·         What about visitor, somebody on a tourist visa? Not sure
·         Presume a person is a people unless it’s really obvious.
·         If the person is in the US involuntarily (ie the govt has brought them in the states), he is probably NOT protected by the 4th
c)        Kidnapped abroad and brought here for only questioning and trial isn’t a people.
d)       Don’t spend too much time on this requirement.
9.       Gov’t actor
·         1f 4th Am, then federal gov’t.
·         If through 14th, then state gov’t.
b)       Private persons can become an agent of gov’t authority.
c)        Private actors can’t violate the 4th w/o the agency relationship.
A.      Search – government intrusion into a person's REP – Katz.
1.       Looking for something is NOT a search
B.       Test for whether defendant has Reasonable Expectation of Privacy
1.       Did he have a (subjective) expectation of privacy that society is willing to recognize as reasonable (objective)? Katz v. US, Harlan concurrence
a)       Has there been a tresspass on the D’s property – If yes, then it is a Search (US v Jones 1-23-12)
·         Unless it is in an open field (although it is a tresspass)
b)       Knowing exposure to the public nullifies the objective prong of REP (most important part)
·         Public may be a 3rd party that you thought was going to be private
·         May be accidental
c)        Pervasive government regulation can nullify subjective and objective prongs.
·         *Be precise as to evidence government was looking for vs. what it seized, what was knowingly exposed: words, smells?
·         Can have a search within a search – separate and analyze each
d)       Objective part:
·         Judge is going to objectively determined the subjective assertion of privacy.
§  Judge is going to determine objectivity based on his own subjectivity.
e)       Subjective Part:
·         Must have evidence that the person tried to shield the transmission of the data
·         Even if you don’t have a subjective EP, then the court can judge based on objectivity.
§  Ex – Person from totalitarian gov’t here in US would not have a subjective belief
C.       Government must have individualized suspicion (probable cause or reasonable suspicion) before can legitimately search.
1.       Must objectively verify that the instinct was reasonable, can’t be pure subjective instinct
2.       States cannot have a per se exception to the knock and announce rule
D.      False Friends Doctrine
1.       When you give the item to another person, you knowingly expose it to the public, and run the risk that the other person will turn it over.
a)       US v. White – Undercover agent listening thru device in informant's house; if you tell somebody something, you risk his telling the cops.
b)       When speaking to another person, may have subjective expectation of privacy, but this is not one that society is willing to accept b/c you knowingly exposed the info to the public, i.e., the friend.
E.       Seminal “Search” Cases
1.       Katz – phone booth bugging case. “4th Amd protects people, not places.” Defendant had a REP in words spoken behind the closed door. However, would have knowingly exposed his movements thru the glass doors, so no REP.
a)       Court rejects that idea that there are some places that are cons’t protected.
2.       Smith v. Maryland – No REP in information voluntarily turns over to 3rd parties (phone #s).
a)       If you voluntarilly give info to a 3rd party there is no REP
b)       Makes Harlan’s REP test a holding
F.       Senses and Commonly Held Technology
1.       SC has held that using human senses or commonly held technology isn’t a search if its in the public domain.
a)       Like a drug sniffing dog, airplane, lipread

ate to confirm it what reasonable
b)       Seizure of property – some meaningful interference w/ a person’s possessory interest.
·         Katz: 4th isn’t defined by strict property rights
§  So intruding on a person’s right to exclude isn’t a violation of 4th.
·         No warrant needed for Plain View Seizure.
·         3 things gov’t can seize:
§  Contraband: evidence that may not lawfully be possessed by a private party
§  Fruits of a crime: evidence of a crime police know is committed
§  Instrumentalities used in commission of a crime: gun, knife
§  Mere evidence: an item of value to the police solely b/c it will help in the apprehension or conviction of a person for an offense.
i)         Bloody shirt
2.       Two Types of Seizure
a)       Terry Stop
b)       Arrest
PROBABLE CAUSE – a search or seizure w/o probable cause is usually (but not always) unreasonable.
I.        Defined
A.      Based on the circumstances, proof that the fact is more probable than not. Assessment of the probabilities.
1.       Finding of probable cause must be “particularized” in the sense that it is related to the individual to be searched.
B.       Totality of the Circumstances Test for Probable Cause – Illinois v. Gates
1.       Based on the circumstances there is a fair probability the thing/person being sought will be located there. Below prima facie evidence but more than a hunch
II.      Overview
A.      If cops seek a warrant, must show probable cause.
B.       If cops conduct a search w/o a warrant, have to show they had probable cause before they conducted the warrantless action. Higher burden to prove probable cause than if they had sought a warrant.
C.       Standard of Review for Probable Cause – Illinois v. Gates
1.       Clear error/abuse of discretion. Great deference to magistrate because we reward police who follow prime directive.
2.       4th Amd not designed to prevent govt from ever making a mistake.
III.    PC in Hierarchy
A.      Mere guess, hunch is never probable cause. No proof at all.
B.       Rea’b suspicion
C.       Probable cause (so can have multiple hypothesis simultaneously)
D.      Middle: preponderance of the evidence
E.       Clear and convincing
F.       Highest proof: Proof beyond rea’b doubt.
IV.    Informant Tips & Probable Cause – must determine whether the tip is reliable
A.      Usually determining whether probable cause existed is easy: eyewitnesses, fingerprints. But with informant tips, don't want to find P/C based on innuendo.
B.       Anonymous vs. Confidential
1.       Confidential informant, have a past record to rely on.
C.       Knowledge obtained by police in course of investigation will offer 1 of 2 things:
a)       Corroboration of tip
b)       Independent basis for PC
·         Police get a tip and based on tip they conduct their own investigation, they get enough to get a warrant.
§  Such as police surveillance of D w/ drugs.
§  If corroborating efforts by police are so good, we are no longer worried about the tip.
c)        Be able to distinguish an investigation triggered by a tip that produces its own independent pc, vs. what we have here (corroborate the tip)
d)       Corroboration is different from independent basis.
D.      Two basic tests to find probable cause based on informant tips (is the tip reliable?)
1.       2 Pronged Test
a)       must be a foundation (the basis of the knowledge)
b)       credibility / veracity (predictive insider knowledge)
·         police corroborate the info
2.       MAJ – Totality of Circumstances test, (weigh the strengths of both prongs credibility and foundation) Illinois v Gates
a)       Foundation of knowledge