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

Criminal Procedure Outline
1)    When Is a Case Criminal?
a)     Generally, a sanction is “criminal,” and therefore comes with the protections of criminal procedure, when the legislature has designated it as criminal [profound].
b)     Courts will reject a legislative intent to create a civil penalty only where the statute is so punitive in either purpose or effect as to negate this intent. United States v. Ward.
§   when do you have a criminal case/action? depends on how state labels it through statute, etc.
§   why would states want to label something criminal? to bring criminal offender to the public eye
§   crimes involve stigma attached by state
2)    The Nature and Sources of Criminal Procedure: Rules of criminal procedure which are rooted in the Constitution, particularly in the Bill of Rights, provide minimum limits on the government’s power to gather and use evidence and to prosecute suspects.
§   gives states some of their greatest power(s)
§   different ways to regulate police power in limited democracies: parliament, statutes, administrative agencies, international agreements, constitution, supreme court
§   regulation is very important
1)    The 4th Amendment
a)     While the police must investigate and collect evidence to deal with actual and potential criminal activities, in so doing they must not violate the 4th Amendment which forbids unreasonable searches and seizures.
b)     Introductory Points
i)       The 4th Amendment protects “the people” sufficiently connected with this country to be considered part of it, but does not protect aliens from conduct that occurs outside the United States. United States v. Verdugo-Urquidez.
ii)     The two parts of the 4th Amendment are the Reasonableness Clause and the Warrant Clause. Where a warrant is required, courts presume searches and seizures conducted without one to be unreasonable. However, reasonableness is required even where a warrant is not.
iii)   The 4th Amendment requires “probable cause” only to support a warrant, but courts also require it for searches and seizures for which no warrant is necessary.
iv)   The 4th Amendment protects only against state action, and not private action, but state action is not limited to criminal investigations or the police.
v)     The 4th Amendment does not specify a remedy for its violation, and thus the exclusionary rule is not a constitutional requirement, but one possible remedy.
c)     The purpose of the 4th Amendment is to provide some protection for the people’s privacy by limiting the government’s power to search and seize.
d)     Courts must first decide whether the 4th Amendment prohibits certain conduct, and then may decide whether to exclude any evidence from criminal proceedings.
2)    The 4th Amendment Threshold Question:Is Government Conducting a Search or Seizure?
a)     Before government conduct can constitute a “search” or “seizure,” a person must exhibit a subjective expectation of privacy, and this expectation must be one which society would consider reasonable. Katz v. United States.
b)     Three legitimate interests of all citizens protected by the 4th Amendment are the interests in freedom from physical disruption and inconvenience; in keeping personal or embarrassing information private; and in control over and use of property.
i)       The 4th Amendment regulates searches and seizures independently because one can occur without the other. A search threatens privacy interests, and a seizure threatens possessory interests in property. Soldal v. Cook County.
c)     Applications of Katz
i)       The subjective manifestation prong of the Katz test requires affirmative steps to protect privacy interests, and abandonment or denial of ownership defeats this.
ii)     The 4th Amendment does not protect “open fields” because there can be no legitimate expectation of privacy in an open field. Open fields do not need to be “open” or “fields.” Oliver v. United States.
(1) The 4th Amendment does, however, protect “curtilage” identified by proximity to the home, uses to which the area is put, and protection from public observation. United States v. Dunn. (proximity of curtilage to home, whether area within enclosure surrounding home, nature of use of area, steps taken by resident to protect from observation).
iii)   There is no 4th Amendment “search” when the police obtain information to which a member of the public has access because there is no legitimate expectation of privacy as to such information. Thus, there is no search:
(1) Where a government informer consents to electronic surveillance of his conversations with a defendant. United States v. White.
(2) Where banks comply with a statutory requirement to report financial information to the government. California Bankers Ass’n v. Shultz.
(3) Where police use a pen register to record numbers called from a particular phone. Smith v. Maryland.
(4) Where police view phone numb

ch of a home if the homeowner still has a reasonable expectation of privacy after the private search. United States v. Paige.
(4) There is no search where government agents reopen a package that another government agent previously searched and resealed, unless there is a substantial likelihood that the contents were changed. Illinois v. Andreas.
vii)A search conducted by foreign officials in a foreign country is not “state action” and therefore is not governed by the 4th Amendment, except where the search or seizure is so extreme that it shocks the conscience, or where United States agents substantially participated in the foreign investigation.
viii)           A prisoner has no protected expectations of privacy in his cell or in the property in this cell. Hudson v. Palmer.
ix)   Public school students and public employees can have a reasonable expectation of privacy at school and at work, respectively.
3)    The Warrant Clause
a)     Searches and seizures conducted without a warrant are per se unreasonable and thus violate the 4th Amendment. However, there are many exceptions to this rule.
b)     A judicial officer must determine whether a particular search or seizure is justified so that the security of the people is not left only in the discretion of the police. Johnson v. United States. [Gottleib: This case would probably come out different today. The fact that the opium was being smoked, which constituted the evidence going up in collective smoke, would make a difference] c)     Warrants protect the people against searches and seizures which are unjustified or arbitrary through the requirements of probable cause, specificity and an “oath or affirmation.” A magistrate may also refuse a warrant for unreasonableness even if the other requirements are met.
Warrant clause—2nd part of 4th amendment
–          justifications state has to fulfill before it can get a valid warrant
–          standards underlie searches w/o warrant
probable cause: below 50/50 standard