I. Constitutional Law and Criminal Law
a. Incorporation Doctrine
i. In General
1. Under the doctrine of incorporation, a constitutionally-based decision ordinarily will bind both the states and federal govt.
ii. Warren Court
1. The decision would be incorporated thru the 14th if the right asserted was fundamental to the American system of justice.
iii. Bill of Rights
1. The 14th Amendment does NOT incorporate the entirety of the Bill of Rights.
a. NOT Incorporated:
i. Right to indictment by a grand jury
ii. 7th Amendment Jury Trial – not binding on states in civil cases.
iii. 8th Amendment Bail Clause
iv. DP Clause
1. A citizen cannot rely on a right to DP if a specific Amendment guarantee would provide the same constitutional protection.
2. Where an Amendment protection has traditionally regulated an area of criminal investigation or prosecution, and yet provides no protection in a particular case, it is very unlikely that a citizen can rely upon a more general DP guarantee.
3. Independent protection under the DP Clause remains viable where govt. activity has some purpose other than enforcement of the criminal law.
4. Independent protection under the DP Clause remains viable even in criminal cases where no specific Amendment guarantee has traditionally applied.
v. State Constitutional Protections
1. State courts cannot construe their own constitutions to provide LESS protections than those granted by the Bill of Rights.
a. BUT, state courts can provide greater protections in their own constitutions than those set by the SC’s construction of the Bill of Rights.
2. If the state court explicitly relies on state constitutional law to provide more protection to citizens than the Federal Constitution, the state court’s decision on this matter cannot be reviewed by the SC (involves no federal question).
a. But, the state court must be explicit that it is relying on state law.
i. If it appears that the state court may have been relying in whole or part on Federal law, then the SC can take the case and reject the state court’s construction, at least as a matter of federal law.
b. Retroactivity
i. In General
1. Retroactivity principles determine whether the SC’s decision will have any effect on official activity occurring before the date of the decision.
2. When the SC reviews the conduct of govt. officials in a criminal case, the legal rule it promulgates will apply to all similar govt. conduct arising after that date.
ii. The Impact of New Decisions
1. General Rule: The benefit of the new rule will be given to the litigant who established the rule, even though that constitutes retroactive application.
a. Reasons:
i. Few litigants would ask the SC to establish a new rule that they could not use; and
ii. To assure that there is a concrete case or controversy.
2. Harlan Rule: The new constitutional rules must be applied, at a minimum, to all cases pending on direct review when the rules are handed down.
a. This includes up until the time a petition for certiorari in the SC has been denied, or the time for such a petition has run out.
3. Harlan Rule: A new rule should NOT be applied in habeas corpus proceedings.
a. Exceptions:
i. The new rule is so fundamental that it is implicit in the concept of ordered liberty.
1. Must be a bedrock criminal procedure element.
ii. Petitioners who rely on the new rule to demonstrate that the conduct for which he was tried was constitutionally protected, so that a trial should never have occurred in the first place.
iii. New Rules
1. If a decision applies settled precedent it is not a new rule and it is completely retroactive.
a. If a constitutional rule is not new, the state court should have applied it correctly, and t/f the failure to apply it is proper grounds for habeas relief.
2. A rule is new if it breaks new ground/imposes a new obligation on the states or the federal govt.
a. A case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final.
3. Detrimental changes in the law must be applied retroactively against petitioners on habeas review.
a. Ex: Convicted of a crime and that crime is no longer a crime.
4. AEDPA (Anti-Terrorism and Effective Death Penalty Act)
a. A habeas petitioner cannot seek to invoke a rule of law unless it was already clearly established at the time of trial – it makes no difference whether the rule proposed by the claimant is a watershed rule or a rule that holds certain conduct beyond criminal prosecution.
b. However, the other rules still apply if AEDPA does not apply.
II. Fourth Amendment
a. In General
i. Fourth Amendment:
1. “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated, and no Warrants shall issue, but upon probable case, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
ii. Basics of the Fourth Amendment:
1. “The People”
a. The language ascribes the right to the people – not merely one person.
b. The 4th does NOT apply to a search of property that is owned by a non-resident alien and located in a foreign country.
i. The term “the people” was intended to refer only to a class of persons “who are party of national community or who have otherwise developed sufficient connection w/ this country to be considered a part of that community.”
c. The 4th is applicable to searches of illegal aliens conducted w/in the U.S.
i. An illegal alien living in the U.S. has a connection w/ the U.S.
2. Reasonableness Clause and Warrant Clause
a. Searches and seizures are presumed to be unreasonable unless carried out pursuant to a warrant.
i. However, when an exception to the warrant requirement has been created, only the reasonableness requirement must be satisfied.
3. Probable Cause
a. The term PC is used to define the minimum showing necessary to support a warrant application.
4. State Action Requirement
a. The 4th is interpreted as providing protection only against the govt. and those acting in conjunction w/ it.
5. Remedies
a. The 4th establishes a right, but does not mention a remedy for a violation.
iii. Purpose of the 4th Amendment
1. The 4th Amendment protects individuals’ privacy.
a. However, from the Amendment’s text, privacy is not absolutely protected.
i. The Amendment implicitly recognizes the legitimacy of reasonable searches and the PC standard for a warrant.
b. Defining “Search” and “Seizure”
i. In General
1. The 4th Amendment prohibits unreasonable searches and seizures.
a. If the govt. conducts a search, it must be reasonable.
2. If the govt. activity is neither a search nor a seizure, it is not regulated by the 4th Amendment, and t/f, the activity does not have to be reasonable.
ii. Katz Reasonable Expectation Test
1. The 4th Amendment applies to any govt. search or seizure that interferes w/ a person’s reasonable expectation of privacy.
2. Katz Two Pronged Test:
a. The govt. conduct must offend the citizen’s subjective manifestation of privacy interest; and
b. The privacy interest invaded must be one that society is prepared to accept as reasonable or legitimate.
iii. Interests Protected by the 4th Amendment After Katz
1. Illegitimate Interests
a. There is no legitimate privacy interest in illegal activity.
i. If the govt. is not certain that someone is participating in illegal activity before the intrusion, the govt. may be invading the legitimate privacy and possessory interest of innocent people.
2. Legitimate Interests that Can be Impaired by Intrusion:
a. An interest in being free from physical disruption and inconvenience.
b. Certain info, even though not indicative of criminal activity, may be personal or embarrassing.
c. The citizen has a legitimate interest in control over and use of his property, and that interest is implicated when the govt. exercises dominion and control over such property.
3. Seizures and Searches Implicate Different Interests
a. Seizure – taking possession of property
i. A seizure of property occurs whenever there is some meaningful interference w/ an individual’s possessory interest in that property.
b. Search – invading on an individual’s privacy.
iv. Applications of the Katz Principle
1. In General
a. If the court finds that the police conduct is a search/seizure, it means only that the 4th Amendment is applicable – the police activity will still be permissible if it satisfies all other requirements of the 4th Amendment.
b. If the court finds that the police conduct is not a search or seizure, it means that the 4th Amendment is completely inapplicable.
2. Subjective Manifestation
a. In General
ii. The person in possession of a pager has a legitimate privacy interest in the numbers stored in the pager’s memory.
f. Trash
i. B/c the public has access to garbage, an individual cannot have a reasonable expectation of privacy in his garbage.
1. Not based on abandonment (requires some showing of a voluntary relinquishment).
2. Based on no expectation of privacy.
ii. Shredded trash is not a search – failed attempt at secrecy.
g. Public Areas
i. Most acts conducted in public are not protected by the 4th.
1. This includes bathroom stalls (if you can see in).
h. Aerial Surveillance
i. If info is made available to the public, then an officer can act as any member of the public could and obtain the info free from 4th restrictions (which includes flying).
ii. The possibility of public access, however, is not enough to render the privacy expectation unreasonable.
i. Manipulation of Bags in Public Transit
i. Look to Katz Test.
ii. Passengers do not expect that other passengers or bus employees will feel the bag in an exploratory manner.
4. Investigation that Can Only Reveal Illegal Activity
a. In General
i. Investigations that threaten to uncover innocent, private activity can constitute a search, b/c it invades a legitimate 4th interest.
ii. There is NO legitimate expectation of privacy in illegal activity.
1. T/f, an investigation is not a search if it can ONLY reveal illegal activity.
b. Canine Sniffs
i. A canine sniff of closed luggage is not a search.
1. It does not require opening luggage.
2. It does not expose non-contraband items that otherwise would remain hidden from public view.
ii. Cops cannot open bags immediately if a dog alerts to drugs.
1. While the sniff is not a search, the opening of the luggage is a search b/c it could uncover legitimate private activity.
2. The officers must attempt to obtain a warrant.
iii. Dog Sniffs During Routine Traffic Stop
1. Dog sniffs are allowed during a traffic stop, so long as the stop is not prolonged that which is reasonably required to complete the mission for the stop.
c. Chemical Testing for Drugs
i. A chemical test that discloses whether or not a particular substance is a drug does not compromise any legitimate interest in privacy.
1. Even if the results are negative, the results reveal nothing of special interests.
ii. Although the taking of the substance is a seizure, it is reasonable if only a minimal amount is taken for a minimal time.
iii. Drug testing of urine is a search, b/c it intrudes on an individual’s expectations of privacy that is recognized as unreasonable.
