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

“Challenge the temptation of mediocrity”
Federal Criminal Procedure – Professor Corn – Spring 2010
Criminal Procedure – State must treat accused as if they are innocent until rebutted by admissible evidence that proves guilt beyond a reasonable doubt. The body of rules that allow you to walk out of a courtroom after trial and say, “I may not agree, but I understand.”
·         Human Justice – never perfect, only cautious
·         Counsel – Main ingredient to criminal procedure – Fundamental Fairness – Powell v. Alabama (1932)
·         Constitution – In order to create a more perfect union in an effort to promote justice
·         Bill of Rights – applies to federal government- restrains federal arbitrary government power
·         Adversarial process – important to the protection of rights
·         14th Amendment – applies the Bill of Rights to the states “fundamental to our concept of ordered liberty”
·         Total Incorporation Option – Fully incorporate 4. 5. 6. 8. Amendments. Justice Black argues it under privileges and impunities clause. Powell, Justices disagree and go with 14th.   
·         Selective Incorporation – Due Process– Denied a jury trial under 14th Amendment application of the 6th Amendment in Louisiana. Justices recognize that jury trial is a part of fundamental fairness because it is in the Bill of Rights. If the 6th Amendment requires a jury trial, then it is also required by the 14th Amendment due process – Duncan v. Louisiana (1968)
·         What is not incorporated – There are now only a few federal rules left which are not incorporated (1) grand jury indictments for felonies (2) unanimous verdict requirements in non-capital cases (3) twelve – person juries
4th Amendment
·         Prohibition against unreasonable searches and seizures. Wolf v. Colorado
·         Exclusionary rule requiring that the result of a 4th Amendment violation not be used as evidence against the defendant. Mapp v. Ohio
5th Amendment
·         Privilege against compulsory self-incrimination
·         Prohibition against double jeopardy
6th Amendment
·         Right to a speedy, public trial
·         Right to trial by jury. Duncan v. Louisiana
·         Right to confront witnesses
·         Right to assistance of counsel in felony cases or misdemeanor cases where imprisonment may be imposed. Gideon v. Wainwright
8th Amendment
·         Prohibition against cruel and unusual punishment
Issue – Whether the government can use illegally obtained evidence at trial or not. Answer: NO! – Exclusionary rule is born – Even evidence that has high probative value can be excluded – Weeks v. U.S. (1914) 
Remedy for the violation of 4th Amendment – In Wolf v. Colorado (1949), SCOTUS says that the prohibition against unreasonable searches and seizures in the 4th Amendment applies to the states.
Rochin Rule – although the exclusionary rule does not apply to the states, when the violation “shocks the conscience, then the evidence will be excluded – Rochin v. California (1952)
Extremely Unreasonable – SCOTUS looks past Rochin and goes back to Wolfand overrules the portion of Wolf that allowed illegally obtained evidence to still be used in court. Exclusionary rule requires that the result of a 4th Amendment violation not be used as evidence against the defendant. SCOTUS hides behind the fact that 25 states now have the exclusionary rule to implement the rule – Mapp v. Ohio (1961)
·         Justice Black – I don’t think we should overturn Wolf, but as we are already prohibiting coerced confessions, we should prohibit illegally gotten evidence. NOTE: problem with this logic train is that the evidence still has probative value, while the coerced confession never had probative value. Black is bringing it in for a reason though.   
SCOTUS – Collateral remedies are ineffective at deterring the police from violating your right to privacy.
·         Pillar One – Deterrence
·         Pillar Two – Not extending Exclusionary rule to the states violates judicial integrity
Government has the burden of reasonableness – The touchstone of the 4th Amendment
search = government intrusion into a people’s reasonable expectation of privacy
Three elements trigger the 4th Amendment –
·         Protect “PEOPLE” from unreasonable search and seizure
o   PEOPLE – Meaningful connection to the U.S.
o   Assume that if the police are conducting a search in the U.S., the person being searched or property searched are the “PEOPLE”  
o   No meaningful connection to the U.S. [Verdugo – Urquidez] ·         The one undertaking the intrusion must be government actor
o   Private citizen can become an agent of the government “snitches acting at direction”
·         Does the intrusion qualify as a search?  
o   A search only incurs when the government search is into the REASONABLE EXPECTATION OF PRIVACY
§ OBJECTIVE EXPECTATION OF PRIVACY – If the people have exposed the RES, THE THING, to the public, then there is no reasonable expectation of privacy
§ SUBJECTIVE EXPECTATION OF PRIVACY = an effort to conceal Reasonable expectation of Privacy occurs when you attempt to conceal the THING from view or intrusion, thus creating a ZONE OF PRIVACY
o   Unless it is a search based on the above, 4th Amendment is NOT triggered
·         ***NOTE***When the government actor is intruding into the people’s reasonable expectation of privacy while conducting a search, they must, at all times,

of privacy
A home has a rebuttal presumptive reasonable expectation of privacy.
CURTILAGE – area immediately surrounding the home. The home is the castle. The curtilage is the area between the castle and the mote. 
OPEN FIELD – When the area between the castle and the mote is 900 South Fork acres, that area is open fields until you are much closer to the house.
·         You can place something in the cartilage and if it is seen from a lawful vantage point, there is no search.
·         If the police enter the cartilage to gain that vantage point, you have a search.   
·         Curtlage is determined on a case by case basis and it depends on how intimate the curtilage is with the home
Kyllo v. United States (2001) – looking for evidence of high powered heat lamps and excessive use of electricity. They have a tip and bills. Issue – is the thermal scanner seeing what is in the home or outside the home? Scalia smacks at Katz and the circular nature of the test.
·         If the technological asset reveals what is happening inside the home (bag, trunk), then it is an intrusion because they had to have used a device to see inside the house without a naked eye. They needed it to get inside.
·         The home becomes a talisman for expectation of privacy. Kyllo may be been decided differently if it had been used against a warehouse 
·         Scalia says the home was the focal point of the 4th Amendment, and while even preserving Katz, this remains true
·         HYPO – guy is living in a pop up tent while homeless. When he leaves, he always secures it with a zipper, etc. On a hunch, police looks for evidence while unzipping tent, looks for evidence. This is a search. There is REP. NEW HYPO – Flap is open. NO search, no REP.
·         NEW HYPO – In tent city, cops routinely go check on the occupants to see if they are ok. Cop looking for evidence finds something. ANALYSIS – Homeless man may have a Subjective REP. Objectively, it is his home. However, (1) Open field, public land (2) pervasive government inspection (3) the physical nature of the tent such as permanence, transient – not brick.  Test analysis should include all of this.