Criminal Procedure Outline

Criminal Procedure, Thaman, Spring 2012

1/11/12 Chapter 1-Basic Principles

I. A criminal case

a. Threshold question: whether a sanction that has been chose is properly classifies as “criminal” for purposes of assigning procedural rights

b. Due process: 1865, 14th amendment:

II. Incorporation & retroactivity

1/12/12 Chapter 2 – Searches and Seizures of Persons and Things

Notes:

· Gideon v. Wainwright

· Search – privacy rights; seizure – property rights/personal liberty

· Who are the “people” to be protected under 4th Amendment? Citizens of the United States (adequate connection with the country)/ foreigners are not protected

I. An introduction to the 4th amendment

A. The problem of gathering evidence: 4th amendment: require voluntary cooperation

B. The basics of the fourth amendment

1. Ascribe the right to the people not to one person

2. Presumption: unreasonableness unless warranted

3. Probable cause to support the warrant application

4. No indication against whom it applies but Not limited to criminal investigations or to the police; only against government officials

C. The amendment and the exclusionary rule

II. Threshold requirements for 4th amendment protections: what is search? What is seizure

A. The reasonable expectation test: Katz v. United States pg.35

1. F: charged with transmitting wagering information by telephone in violation of a Federal statute. P placed his phone in the public telephone booth. Appealing court rejected P’s claim for violating 4th Amendment because the public telephone booth is not an area occupied by P and no physical entrance.

2. I: search and seizure? Violation?

3. R: wrong issues: 4th amendment protects people not place; no physical intrusion required

4. H: electronically listening to and recording the petitioner’s words violated the privacy that the P was expected to protect and constituted a search and seizure under the 4th amendment

5. Two-fold test: 1) whether expectation of privacy; 2) whether reasonable

6. Notes:

a) Property rights are more important than privacy rights

b) What constitutes a search: two-prong test

i. Expectation of privacy

ii. Such an expectation is reasonable

c) Probable cause: reasonable suspicion/ in some states, the reasonable suspicion hurdle is put before the search of the garbage

B. Interests protected by the 4th amendment after Katz

C. Application of the Katz principle (curtilage: protected unless the official look into the curtilage in an open field/open fields: not protected by 4th amendment)

1. Subjective manifestation

2. Open fields rule: prior to Katz

a) Test for curtilage: pg.47

3. Access by members of the public

a) Consensual electronic surveillance

b) Financial records

c) Pen registers

d) Trash: garbage in curtilage (on debate)

e) Public area: homeless people

f) Aerial surveillance

g) Manipulation of bags in public transit: Bond v. U.S.

4. Investigation that can only reveal illegal activity: investigation that reveals innocent, private activity can constitute a search/an investigation is not a search if it can only reveal illegal activity

a) Canine sniffs

i. US v. Place: a canine sniff of closed luggage for drugs was not a search; unreasonable seizure because the police did not have the dog ready and detained Place’s luggage for 90 mins

ii. After the dog alerts to drugs, the officers cannot open the luggage immediately. The opening would be a search because it could uncover legitimate private activity

iii. Dog sniff may become a probable cause to obtain a warrant

iv. Dogs are excited that they go beyond simply sniffing the suspect container

· US v. Lyons: the dog became agitated and tore the package in two, spewing the contents on the floor. à not a search but only a natural occurrence; the government had no responsibility unless there was some police misconduct involved; it was so quick that the police had no chance to stop the dog; the dog’s instinctive actions did not violate the 4th Amendment

v. Dog sniffs of people and places

· Dog sniff of a person is a seizure if the dog makes contact with the person; dog sniff of a person four feet away does not constitute a search or seizure

· US. V. Thomas: Use of a dog outside an apt was a search because of the greater expectation of privacy in the home; dog sniff of apartment was a greater intrusion

· US v. Colyer: a dog sniff outside an sleeping compartment was not a search

· US v. Reed: the person has no legitimate privacy interest in the possession of contraband

vi. Dog-sniff of a car during a routine traffic stop: Illinois v. Caballes

· The officer had no justification for thinking that Caballes was carrying drugs and walk the dog around the car when the car was legally stopped for speeding

· Illinois Supreme Court: the initially lawful traffic stop became an unlawful seizure solely as a result of the dog sniff that occurred outside the stopped car. The use of the dog converted the citizen-police encounter from a lawful traffic stop into a drug investigation à shift in purpose was not supported by any reasonable suspicion that respondent possessed narcotic, it was unlawful

· Our cases hold that it did not

b) Chemical testing for drugs

i. US v. Jacobsen:

· Chemical test that merely discloses whether or not a particular substance is cocaine does not compromise any legitimate interest in privacy

· Not a search but a seizure because the powder sample was destroyed during the test; the seizure was reasonable because there was an clear indication that the powder was some kind of contraband before the test

ii. Other drug testing: urine test (search: uncover innocent information and collecting course is intrusive and embarrassing)

5. Use of technology to enhance inspection

a) Thermal detection devices: Kyllo v. US

i. I: whether the use of a thermal-imaging device aimed at a private home from a public street to detect relative amounts of heat within the home constitutes a “search” within the meaning of the 4th amendment?

ii. F: marijuana was suspected to be grown in the home of Kyllo. Growing of marijuana requires high-intensity lamps. The officers used a thermal imager to scan Kyllo’s home. The officers found the roof over the garage and a side wall were relatively hot and concluded that Kyllo was using lights to grow marijuana, which indeed he was.

b) Electronic tracking devices:

i. us v. Knotts: tracking public movements

· A purchaser of chemicals might be using them to manufacture drugs; the officer installed a beeper in the container; the officer monitored the beeper signal

· Whether the officers had invaded any legitimate expectations of privacy held by Knotts when they tracked the container’s movement by use of beeper/no

ii. Us v. karo

· Beeper monitored Karo’s movement; first obtained a court order t