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Criminal Procedure
South Texas College of Law Houston
Gershowitz, Adam M.

Criminal Procedure Outline
Spring 2007
Professor Gershowitz
Cited to Dressler’s Criminal Procedure: Principles, Policies and Perspectives (2nd Ed.)

I) The Criminal Process: Failure and Legitimacy (1)
A) Incorporation – the application of the Bill of Rights to the states via the 14th amendment.
B) Selective Incorporation (as opposed to total incorporation) – the Supreme Court will apply clauses of the Bill of Rights to the states via the 14th amendment if they are fundamental to due process (everything but grand jury and excessive bail is incorporated).
1) Corollary Rules – note that if a clause is incorporated, the states must abide by that clause, but not necessarily all of the corollary rules to that clause.
II) Fourth Amendment: An Overview (64)
A) The Fourth Amendment Generally
1) The Fourth Amendment protects against unreasonable searches and seizures and only allows for particularized warrants with probable cause.
2) Exclusionary Rule – Federal agents may not keep or use evidence gained via a search abhorrent to the 4th amendment.
(a) The use of such evidence is prejudicial error.
(b) Silver Platter Doctrine – as federal officials couldn’t obtain evidence via illegal searches, state officials would go get the evidence and give it to the feds on a silver platter. Now, any information obtained during an illegal federal/state raid cannot be used by the feds.
(c) Exceptions to the Exclusionary Rule
(d) The exclusionary rule won’t apply at grand jury hearings, preliminary hearings, probation hearings, parole hearings…
(e) Excluded evidence can be used to impeach a lying Δ (cross or direct), but not that Δ’s witnesses.
3) Note: The fourth amendment protects people, not places. IE you can (potentially) entertain a REP in a public place.
B) Four Basic Steps in Evaluating 4th Amendment Jurisprudence –
1) Was there a search?
2) Was there probable cause?
3) Was there a warrant?
4) Was an exception to the warrant requirement present?
C) What is a Search?
1) Reasonable Expectation of Privacy (Katz Doctrine) – a search or seizure occurs if the government invades a citizen’s privacy and (1) the citizen has exhibited a subjective expectation of privacy and (2) the expectation is one that society recognizes as reasonable.
(a) Note that you can argue that the government controls the subjective expectation, because you don’t have a subjective expectation if you know the government is watching.
(b) Illegal Activity – You do not have a REP in illegal activity. Thus, if a search only encompasses illegal activity (IE a non-invasive drug-dog sniff)

y 4th amendment protections (assuming a REP is present).
(a) Curtilage or Open Fields? – Look to 4 factors: 1. proximity to the home, 2. enclosure of the area, 3. nature of the use of the area, and 4. steps taken to protect from observation.
(i) Industrial areas don’t enjoy curtilage rights (IE DOW Chemical).
(b) Planes and Double-Decker Cars – What a party knowingly exposes to the public is not subject to the 4th amendment. Thus, if the public could observe your curtilage from a plane or a tall car which is there legally (IE in navigable airspace), then you have no REP.
(i) Note that even if you have tall fences (such that you may subjectively have an expectation of privacy), the possibility of a plane flying overhead may destroy your REP.
(c) Trash Pickup – a person who leaves trash outside their curtilage for pickup has no REP in that garbage.
E) Surveillance Technology
Basic Rule – The use of technology readily available to the public to observe property is not a search or seizure (IE nice cameras, but not heat sensors).