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Criminal Procedure
UMKC School of Law
O'Brien, Sean D.

Criminal Procedure Outline
Fall 2006

I. Introduction3
II. Search & Seizure……. 3
A. Introduction to the Fourth Amendment…………… 3
B. What is a Search/Seizure?….. 3
C. The Tension Between the Reasonableness and Warrant Clauses. 4
D. Demonstrating Probable Cause…. 4
E. Probable Cause, Specificity, and Reasonableness….. 5
F. Executing the Warrant—The Screening Magistrate…………… 6
G. Arrests & Material Witnesses…………… 6
H. Stop and Frisk8
1. Defining a Stop: The Line between a Stop and an Encounter……. 9
2. Reasonable Suspicion……. 10
3. Limited Searches for Police Protection under the Terry Doctrine……. 11
4. Brief and limited Detentions: The Line between “Stop” and “Arrest”……… 12
I. Search Incident to Arrest; Pretextual Stops and Arrests; Plain View Seizures13
1. Search Incident to Arrest……… 13
2. Pretextual Stops and Arrests……… 14
3. Plain View Seizures……… 15
J. Automobiles and Other Movable Objects: Exceptions to the Warrant Requirement……… 15
K. Exigent Circumstances….. 16
L. Administrative Searches…………. 17
M. Consent Searches…………. 20
N. Wiretapping, Eavesdropping, etc………….. 21
III. The Exclusionary Rule……… 22
A. Fruits of an Illegal Search23
B. Independent Source and Inevitable Discovery Doctrines…………. 24
IV. Self-Incrimination and Confessions…………….. 25
A. The Fifth Amendment and Self-Incrimination……….. 25
1. Policies……… 25
2. What is Compulsion…. 26
3. To Whom Does the Privilege Belong? What is Protected?… 27
4. Procedural Aspect of Self-Incrimination28
E. Confessions and Due Process28
F. Confessions under the Fifth Amendment: Miranda and Its Impact.. 29
1. Applying Miranda……… 30
2. Waiver of Miranda Rights32
G. Confessions under the Sixth Amendment…………. 34
1. Deliberate Elicitation….. 34
2. Waiver……… 35
3. Fruits of a Sixth Amendment Violation……. 36
VI. The Grand Jury36
A. Evidence before the Grand Jury…………. 36
B. Powers of Investigation……….. 37
VII. The Right to Effective Assistance of Counsel… 37
VIII. Discovery39
A. Specifics of Defense Discovery…………. 39
B. Prosecutor’s Constitutional Duty to Disclose40
IX. Guilty Pleas and Bargaining: Requirements for a Valid Plea……… 41
X. Constitutionally Based Proof Requirements…………….. 42
A. Proof Beyond a Reasonable Doubt42
B. Reasonable Doubt and Jury Instructions……… 42
C. Scope of the Reasonable Doubt Requirement……… 42
D. Proof of Alternative Means of Committing a Single Crime… 42
XI. Trial by Jury……… 43
A. Requisite Features of the Jury…………. 43
B. Jury Selection and Composition……….. 43
C. Peremptory Challenges……….. 44
D. Preserving the Integrity of Deliberations……… 45
E. The Trial Judge and the Right to Jury Trial…………. 45

I. Introduction

II. Search & Seizure
A. Introduction to the Fourth Amendment
· Fourth Amendment:
◊ reasonableness clause: “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated,”
◊ warrants clause: “and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to searched, and the person or things to be seized.”

B. What is a Search?
· definition: a search or seizure is an action by the state that violates an individuals reasonable expectation of privacy (REOP)
◊ two-part test attributed to Harlan, J., concurring in Katz (41):
§ person must have exhibited an actual (subjective) expectation of privacy
§ society must recognize that expectation as reasonable
◊ ∆ had REOP
§ content of conversation conducted in public telephone booth with closing door (as opposed to simply being observed having a conversation)—∆ sought to exclude “the uninvited ear” not the “intruding eye” (Katz, 1967—38)
§ agent’s manipulation of ∆’s luggage (placed in space) far exceeded the casual contact ∆ could have expected from other passengers (Bond, 2000—58)
◊ no REOP where ∆ exposes something to the public (i.e., public access = no REOP)
§ consensual electronic surveillance
* US v. White (US 1971 – 50): ∆ had no REOP in conversations with government informant who was wearing a concealed radio transmitter
› “one contemplating illegal activities must realize and risk that his companions may be reporting to the p

to a few specifically established and well-delineated exceptions.”
◊ however, this so-called per se rule is, according to Justice Scalia, “so riddled with exceptions that it is basically unrecognizable”
◊ thus, one might say that courts have expressed a preference for warrants, but are willing to consider the circumstances of each particular case
· justification for the warrant requirement
◊ requires inferences to be drawn by a detached magistrate, rather than “the officer engaged in the often competitive enterprise of ferreting out crime” (Johnson, 1948—86)
◊ two negative consequences of indiscriminate searches (Amsterdam – 88)
§ exposes people and their possessions to government interference without good reason
§ creates potential for executive officials to act despotically and capriciously
◊ other justifications for primacy of the warrant requirement
§ antecedent warrant requirement prevents possibility of officers working backwards to justify actions ex post
§ advance written record also necessary to police specificity requirement
§ allows magistrate to reject warrant application if search is unreasonable under the circumstances
§ reduces public perception of unlawful police behavior
§ moreover, even though statistics suggest that the vast majority of warrant applications are granted, the mere necessity of filing an application may have a deterrent effect on unlawful searches and seizures (i.e. b/c police know they have to go to magistrate, they are more selective and careful about whether a search is truly reasonable)

D. Demonstrating Probable Cause
· in order to issue a warrant, the magistrate must determine whether there is a fair probability that search will uncover evidence of wrongdoing
standard of review for magistrate’s decision to issue warrant: