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Criminal Procedure
UMKC School of Law
Cantu, Edward

Criminal Procedure I – Fall 2015
Crim Pro I Notes
1.      4th Amendment Issue for FINAL EXAM
a.     Step 1 à Is there a Search?
2.      Crim Pro I – Introduction
a.     4th Amendment is often thought of as the fundamental American right – the right to be left alone
                                                               i.      Knowing how courts balance the values is vital to our role as a lawyer and a person – this course will let you know what rights you have as a citizen
b.     This course will MOSTLY revolve around the 4th Amendment – Illegal Searches and Seizures
                                                               i.      4th Amendment jurisprudence is slippery
3.    The Criminal Process
a.     Arrest – blurred line btw what constitutes “arrest” vs. “detention”
b.     Filing Charges – at the federal level, magistrate judges sit under DC judges and review evidence to determine if it is sufficient to charge a crime
                                                               i.      a “Magistrate” is basically a lower-level judge.  They issue search warrants, and the like at the federal level. 
1.      State level, magistrates are very low level, issue warrants and stuff
c.     Initial Appearance – the suspect has a right to an attorney, granted by the 6th Am.  The attorney can be appointed by the court or retained by the suspect.
                                                               i.      Defendants 1st appearance in court.  Where they find out their charges, their rights, what their bail is set, etc.
d.     Preliminary Hearing – this hearing will establish whether there was probable cause to detain.
                                                               i.      2-3 weeks after the initial appearance. Adversarial process.
                                                             ii.      Is there probable cause to keep you detained or not.
e.     Indictment/Information Stage – a grand jury will determine whether there is enough evidence (or probable cause) to indict the suspect.
                                                               i.      A grand jury has discretion.  They can decide whether the prosecutor has a right to pursue the indictment of the defendant. 
f.        Arraignment – where the Defendant enters a plea (plead guilty or not guilty).
                                                               i.      Suspect almost always pleads not guilty at this stage, plea deal comes later.  Defendant is at the mercy of the court, so no reason to plead guilty here – there is still a while to negotiate a plea.  If you plead not guilty, your lawyer can start doing his job to reduce the prosecutor’s charge.
1.      Trial date is set at this point
g.     Pre-trial Motions – pre-trial stuff, file different motions
                                                               i.      Motion to suppress is what can be filed here
h.     Trial – Main difference btw Civil and Criminal Trial à Burden of Proof
                                                               i.      prep of evidence à Civil Case
                                                             ii.      Beyond a Reasonable Doubt à Criminal Case
4.      Sources of Criminal Procedure
                                                               i.      US Constitution
1.      The US Constitution is the floor below which a State Constitution may not go
2.      Does not distinguish btw the seizure of persons and the seizure of things
                                                             ii.      State Constitutions
1.      States incorporate the 14th amendment due process clause into their procedures
a.     Incorporation can be “free standing” or a “conduit for other substantive rights”
2.      We will mostly deal with incorporation of the 4th Amendment (searches, seizures, or arrests).
b.     42 USC §1983 – can sue the gov’t for violating a constitutional right and you can receive damages.
5.      4th Amendment
                                                               i.      The right of the people to be secure in their:
1.      Persons, houses, papers, and effects, against
2.      Unreasonable
3.      Searches and
4.      Seizures
                                                             ii.      Shall not be violated, and no warrants shall issue, but upon
1.      Probable cause, supported by
2.      Oath or affirmation, and
3.      Particularly describing the place to be searched, and
4.      The persons or
5.      Things
a.     To be seized
b.     Primary 4th Amendment Issues:
                                                               i.      (1) Searches:
1.      What is a “Search?”
2.      When are SEARCHES valid?
                                                             ii.      (2) Detentions/Arrests:
1.      What exactly are they?
2.      When are they valid?
                                                            iii.      (3) What is the correct REMEDY for invalid S/Z?
c.     Searches
                                                               i.      The standard for whether a search is legitimate is whether it was “reasonable.”  Judges take shots in the dark to define reasonable.
                                                             ii.      If the search is unreasonable, what is the remedy?  Criminal goes free.  Isn’t this too harsh?  But what are the alternatives?
e.     Katz v. United States – Expectation of Privacy – phone booth is reasonably expected to be private (4th Amendment protects people, not places)
                                                               i.      Transmitting betting info to another state from a phone booth that the police wire tapped
                                                             ii.      Rule
1.      The 4th Amendment protects a person from search and seizure if they have a justifiable expectation of privacy, regardless of whether an actual physical trespass occurred

time the court has ever used this
3.      Enhancing the senses is okay (binoculars, telescope), but at what point is it qualitatively different and impermissible for cops to use without a warrant? – Line-drawing problem
                                                            v.      Justice Stevens à dissent lamented that the cops “just picked up heat emanating from the house”
1.      There is a problem with the “intimate” standard, the idea that it is a “search” if the cops snoop on intimate behavior. 
a.     But what is intimate? Court cannot determine this, instead the court draws a bright line and says that if it’s in the home, it is “intimate.”
                                                          vi.      Court’s Response to the Dissent
1.      Dissent’s reliance on Katz is misplaced because in Katz, the court considered it a search because the cops picked up on sound waves emanating from the phone booth, and here cops picked up heat waves emanating from the house.
6.      What Areas Give Rise To An Expectation Of Privacy?
a.     Areas of Little or No Expectation of Privacy – No Search
                                                               i.      Open Fields à no protection under the 4th Amendment
b.     Oliver v. US
                                                               i.      Cops encounter located gate with “no trespassing” sign on ppy, go around it and find pot plants in open field.
                                                             ii.      The court says open fields are categorically unprotected:
1.      4th Amendment doesn’t hint at open fields
2.      No Reasonable expectation of privacy in open fields, society doesn’t recognize an expectation of privacy in this area as reasonable
                                                            iii.      Ruling:
1.      Open fields are not the same as Curtilage.
a.     Curtilage à area immediately surrounding your house.  CAN qualify for 4th Amendment Protection.
                                                                                                                                       i.      4 factors for determining Curtilage:
1.      The proximity of the area claimed to be curtilage to the home
2.      Whether the area is included in an enclosure surrounding the home
3.      The nature of the uses to which the area is put
4.      Steps taken by the resident to protect the area from observation by people passing by