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

Criminal Procedure
Spring 2017
Most of the criminal related protections of the bill of rights apply to the states through the Due Process clause of the 14th Amendment
If it’s a Federal case, you don't need the 14th Amendment
The only 3 that have not been incorporated
The grand jury indictment requirement
Unanimous verdict in a noncapital case
12 member jury in a noncapital case
Everything else applies to the states
Illustration for incorporation:
*the fourth amendment does not include an exclusionary rule
No textual exclusionary rule
Weeks v. U.S. (1914) unanimous supreme court concludes that exclusion of illegally obtained evidence is required to give meaning to the 4th amendment
Wolf v. Colorado (1949) court extended the 4th amendment's protection to the states but not the exclusionary rule
Mapp v. Ohio (1960) court reconsidered and extended the exclusionary rule to the states as an element of due process
Fourth Amendment
Protects the people from unreasonable searches and seizures
Requires that a warrant be based on PC
Issued by neutral and detached magistrate under oath
Must be government action
Private action, no matter how outrageous does not trigger the 4th amendment
Silver Platter doctrine
UNLESS they are acting as an agent for the government
Directed at a People
The fourth amendment does not apply to non-resident aliens with no significant connection to the united states
Doesn't mean you have to be here legally
If you are here voluntarily, but not lawfully, you are protected under the fourth amendment
What qualifies as a seizure or a search
Seizure of property occurs when the government causes a meaningful interference of a possessory interest
Putting something on property is not a seizure unless the suspect knows about it
A seizure of a person occurs as a result of an application of physical force or a show of authority followed by submission
Resisting a show of authority does not result in a seizure
A physical trespass on an enumerated fourth amendment interest for the purpose of gathering information
An investigatory trespass
Only applies to the person, home, papers, and effects
Home includes curtilage, but no open fields
It is not a trespass if the government acts with an implied license to enter the property
If they exceed the license, it becomes a trespass
A search occurs when the government intrudes on a reasonable expectation of privacy
Remember, if it’s a trespass, you don't need a reasonable expectation of privacy
REP is only essential when there is no trespass
Two Prong Test for REP:
Subjective expectation of privacy
That society recognizes as objectively reasonable
Subjective expectation = an effort to shield the thing from the public
argument for no REP – the suspect knowingly exposed the thing to the public
Bank records, header info on email (contents – yes), address on an envelope (contents – yes), abandoned property, telephone records, hidden stolen property
False Friend Doctrine: No REP to statements you made to someone else
If the government uses technology to enhance natural senses, that doesn’t automatically transform into a search
But if it allows to penetrate a concealed space, it qualifies as a search
Even if it conducted beyond the property
Unless it’s a dog
A dog is sui generous bc it can only detect contraband
No reasonable expectation of privacy to have that not detected
Search must be reasonable and Seizure must be reasonable
Reasonableness is the touchstone of the 4th amendment
A search and seizure must be reasonable otherwise it violates the 4th amendment
Violation does not automatically mean exclusion*
Presumption of reasonableness if police obtain warrant
A ∆ can attack the presumption of a warrant by a showing that:
the magistrate was not neutral and dettached
Need evidence the magistrate was part of the investigation
Too general
Not sufficiently particular
Show it is not the result of an oath or affirmation
Or despite the oath, the magistrate was presented misleading information deliberately or recklessly
If magistrate is lied to, you have to extract that information from the application and decide whether the information left is enough for PC
Not automatically invalidation
Attack the validity of the PC
Use when the warrant is based on an information
PC means a fair probability based on facts and circumstances
Completely objective standard
When police rely on an informant's tip to establish PC, and the informant does not claim to have first hand knowledge of the thing, then Illinois v. Gates becomes the standard
Totality of the Circumstances Test +
Two Prongs
The informants veracity
The informants basis on knowledge =
Combined together must indicated the tip is reliable
When police conduct indep

No such thing as search incident to citation, even if arrest was authorized
if its an arrestable offense and cop gives a citation
Key to analyzing a SITLA is Scope. Police must stay within Scope.
Scope: immediate control/wingspan/Lunging distance
Can’t search the whole home in a SITLA (Chimel v. California)
Need another justification
Special rule for arrest of occupant or recent occupant of vehicle (Arizona v. Gant)
If arrestee has genuine access to the car, the scope of the SITLA extends to the interior of the automobile and any containers inside but not the trunk.
Limitation: Once arrestee is secured, the SITLA authority terminates.
BUT police may search the car if they have reason to believe that evidence related to the arrest is in the car.
SITLA does not extend to the contents of the phone.
You can seize the phone but need a warrant or consent to look inside. (Riley v. California)
Physical= SITLA is automatic
Data= no SITLA, need another justification.
SITLA does not extend to:
blood but can take breath
Inventory (exception to both PC and Warrant)
If a vehicle is impounded, the inventory is administrative and does not require PC or a warrant.
BUT police must follow their own regulations
Automobile exception (Chambers v. Maroney)
If police have PC to search an automobile or any container in the automobile, they may do so without obtaining a warrant.
Just consider the car, a substitute for the warrant.
Scope: dictated by the PC
just like exigency, wherever the warrant would allow the search, that’s where you can search
Can you search the trunk under auto exception?
Depends on the PC (different from SITLA)
If a container is in the car, its just like the car. (California v. Acevedo)
If container is not in the automobile, a warrant is presumptively required even if you have PC.
unless you have an exigency
As soon as they put it in a car, all they can do is open the container the cops saw put in the car.