Rose – Criminal Procedure – Spring 2011
§ Introduction
o Outline
§ Exam
· You will generate a memo outlining the evidence that will be admissible and providing an opinion of what needs to happen
· About 20 multiple choice questions – 20% of the test
§ Amendment 4 – Search and Seizure. Ratified 12/15/1791.
· 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 cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
§ Amendment 5 – Trial and Punishment, Compensation for Takings. Ratified 12/15/1791
· No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
§ Amendment 6 – Right to Speedy Trial, Confrontation of Witnesses. Ratified 12/15/1791.
· In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
§ Amendment 14 – Citizenship Rights. Ratified 7/9/1868
· 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
· 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
· 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
· 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
· 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
§ Objectives
· Understand the Overarching Theme of the Subject
· Understand What/Why the Focus of This Course
· Understand the Mechanics and Expectations of the Course
§ Ideologies in Criminal Law
· Traditional
o Jewish, Greek, and Roman thought – western scheme of thought
o Retributive
o Still exists in our society
· Classical
o Free form intelligent individual – institutions corrupt – tradition is no more than a corrupt institution that prevent man from achieving its greatest goal – only time institution should intervene is when something interferes with your self actualization
o Deterrent
§ Needs to be swift and severe so that no one will commit the crime
o Right to be self actualized is the reason for deterrence
· Modern
o Society decides what should be done
· Side note – 101 Philosophers You Should Know book
§ Practical Exercise
· Dan was traveling on a bus from LA to D.C., & the bus stopped for refueling.
· Investigator Nose was performing drug interdiction duties at the Greyhound station.
· Investigator Nose looked inside the bus’s lower luggage compartments, and he found luggage displaying a baggage ticket with Diamond’s name he also discovered the passenger had paid cash on the day of travel.
· Law enforcement removed the luggage from the bus and took it to the rear baggage terminal.
§ Practical Exercise
· Investigator Nose, wearing jeans and a t-shirt displayed his badge, identified himself as a law enforcement officer, and informed Diamond he was not in trouble.
· Diamond then followed Investigator Nose to a room where luggage was being held.
· The room had two open doors, and one or two other officers were already inside the room.
· When Investigator Nose sought permission to search the luggage, Diamond made an affirmative verbal response.
· During the search, Diamond claimed the luggage actually belonged to a friend. Law enforcement discovered bomb making materials and terrorist propaganda in the luggage.
§ Question
· Was the cop’s examination of Diamond Dan’s luggage legal?
§ 4th Amendment
· “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 cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or thin
al rule or court announced rule that applies to the facts?
§ Steps to Briefing a Supreme Court Case
· Analysis: What was the Court’s holding? How many justices agreed with the opinion? What was the rationale that the Court used to reach its conclusion? What theoretical construct did the Court create or refer to in reaching its decision?
· Judgment: Who Won?
· Dissenting/Concurring Opinions: (There will be one or many in virtually every case.) How do these opinions articulate the case holding? What facts do they emphasize that the majority ignores? What is the theoretical basis for their opinion? Are they truer to the Court’s precedent or to the language of the Constitution? What danger’s do they predict for the future?
§ Exceptions to the warrant requirement
o Courts have developed a number of exceptions to the warrant requirement:
· Consent searches
o If a party gives consent to a search, a warrant is not required, even if the party is unaware of their right to refuse to cooperate. There are exceptions and complications to the rule, including the scope of the consent given, whether the consent is voluntarily given, and whether an individual has the right to consent to a search of another's property.[56]
· Plain view doctrine
o If an officer is lawfully present, he may seize objects that are in “plain view”. However, the officer must have had probable cause to believe that the objects are contraband.[57]
· Open fields doctrine
o Similarly, “open fields” such as pastures, open water, and woods may be searched without a warrant, on the ground that conduct occurring therein would have no reasonable expectation of privacy.
o The doctrine was first articulated by the Supreme Court in Hester v. United States, 265 U.S. 57 (1924), which stated that “the special protection accorded by the Fourth Amendment to the people in their ‘persons, houses, papers, and effects,’ is not extended to the open fields.” The decision was rendered on the ground that “open fields are not a 'constitutionally protected area' because they cannot be construed as “persons, houses, papers, [or] effects.”
o In Oliver v. United States, 466 U.S. 170 (1984), the police ignored a “no trespassing” sign and a fence, trespassed onto the suspect's land without a warrant, followed a path for hundreds of feet, and discovered a field of marijuana. The Supreme Court ruled that no search had taken place, because there was no privacy expectation regarding an open field: open fields do not provide the setting for those intimate activities that the Amendment is intended to shelter from government interference or surveillance. There is no societal interest in protecting the privacy of those activities, such as the cultivation of crops, that occur in open fields.[58]
