Select Page

Criminal Procedure
UMKC School of Law
Suni, Ellen Y.



























Big Picture Issues

“Crim Pro” is something of a misnomer

In this class, we’re greatly focused on the 4th Amendment, which has nothing to do directly with “criminals”
The 4th Amendment is really about restrictions on government power, vis-à-vis private citizens.
The reason we look at the 4th Amendment is that the interpretations of the amendment have been focused on the exclusionary rule, which is the remedy in criminal trials.
We’ll also look at the right of the police to stop travellers.
We’re really looking mostly at the early stages of the process – investigation and arrest

We’re often looking at control over the behavior of the police. Sources of control over police:

Federal Constitutional Law
State Con Law

MO interprets its Constitution to be in congruence with the Federal Const.
Other states have broader constitutional protections that may apply

Legislative responses to court action

Key Stages in the Criminal Justice Process

Conduct that might constitute the commission of a crime

Interview witnesses
Gather evidence – take photographs
Interrogate a suspect


What is an arrest? This is a harder question that it looks like.
The simple answer is that when the police put you in handcuffs and put you in the backseat of the police car, you’re arrested.
In MO – Actual restraint of the person under authority of warrant or otherwise, when a person is taken into custody for the purpose of prosecution (usually).


After arrest, must be charged within a certain period of time
Charging document is filed

Arraignment or first appearance takes place – which begins “AJP” – adversary judicial proceedings.

AJP is important, because AJP is what triggers the 6th Amendment.
AJP is basically (whichever comes first):

First Appearance
Indictment or Information – If you have an information, you generally have a preliminary hearing at which a judge makes a finding as to probable cause (serving the screening function of the grand jury).

Two things that do NOT constitute AJP

Arrest is NOT
Booking is NOT

Why do we start with the remedy (exclusionary rule) before we talk about the violation?

Exclusionary rule colors the way that courts look at in a 4th Amendment context
Almost every case that the court gets asking it to interpret the 4th Amendment is driven by a motion to supress.
The exclusionary rule provides the big picture context of 4th Amendment jurisprudence.

Application of the 4th Amendment to the States

Wolf v. Colorado

Incorporated the 4th Amendment to the states under the due process clause of the 14th Amendment.
The Court rejected Total Incorporation and Fundamental Fairness analyses and adopted the Selective Incorporation – “implicit in the concept of ordered liberty” perspective previously articulated in Palko.
In adopting the ordered liberty perspective, the court weighed

Total Incorporation – of the first eight amendments (and rejected it)
Selective Incorporation – choose from among the first eight amendments to implicate on the State those due process rights that are “Implicit in the concept of ordered liberties”
Fundamental Fairness – very similar to selective incorporation, but probably more fluid. The difference is whether the adoption applies categorically or based on the facts.

Selective Incorporation looks to the right itself to determine whether the right ought to be incorporated. (Categorical approach).
Fundamental Fairness is concerned with the particular facts of the case before the court to determine whether the right ought to be incorporated because failure to do so would result in a violation of “fundamental fairness”. (Case by case factual analysis).

The court, however, stopped short of adopting the exclusionary rule.

The court says that exclusion is a remedy that is not within the purview of the court.
The exclusionary rule, according to this Court, is not itself at the core of the Fourth Amendment.

How are rights incorporated? Are they incorporated whole?

In Apodaca the Court examined this in the context of the 6th Amendment right to jury trial?

Do juries have to be unanimous (in the federal system)? 5 justices said yes and 4 said no.
Is the 6th Amendment incorporated upon the states? 8 justices said yes.
BUT Apodaca lost anyway.

4 justices said that the unanimous juries are required and it is incorporated to the states.
4 justices said that unanimity is NOT required and it is incorporated to the states.
Powell stood alone saying that unanimity is required BUT the right is not incorporated to the states (so he voted to affirm the conviction).

Powell in Apodaca, like Harlan in Mapp believed that in a federalist system that the states needed to have room to experiment with their own solutions to constitutional problems.
Right now, we don’t really know, due to changes on the Court, how the current court would rule in such a matter.

Where are we today and how did we get there?


The court didn’t say that the constitution mandated exclusion
Rather, the court was applying a judicial remedy for the violation of a federal right, through it’s supervisory power over federal law enforcement.
BUT, the Supreme Court has NO supervisory power over state police practices.
Therefore, though the rights of the 4th Amendment do apply to the states, the exclusionary rule remedy

Mapp v. Ohio

Most of the court thought they were deciding a 1st Amendment issue, but the case ends up getting decided on a 4th Amendment/exclusionary rule basis.
Forcibly entering a home without a warrant is clearly a violation of the 4th Amendment
The question is what the remedy for a 4th Amendment violation ought to be
In Wolf the court did incorporate the 4th Amendment, but refused to incorporate the exclusionary rule as part and parcel of the 4th Amendment.
Here, the court reverses field (even though there were other grounds than the 4th Amendment to invalidate the conviction) and applies the exclusionary rule as against state LEO’s
In Rochin the court addressed a physically violative search just a few years after Wolf.

This could have been a 4th Amendment case, because Wolf incorporated the Amendment. But the exclusionary rule was not yet incorporated, so it wasn’t dealt with as a 4th Amendment issue.
Instead, the court used Substantive Due Process analysis and said that on those particular facts, the conduct of the state officers “shocked the conscience” of the court so the evidence was excluded on the SDP basis.
Subsequent cases involving involuntary blood tests after auto accidents applied the Rochin test. The key to the Rochin test is “brutal or offensive physical force”. Some physical force is OK – it’s got to be really brutal. So in Breithaupt and Schmerber the blood tests were OK.

In Breithaupt it was easy, because the defendant was unconscious so there was no force or violence. Also, blood tests are fairly routine, unlike the stomach pumping in Rochin.

is later, and defendant is awake and resists the blood test. Defendant had to be restrained in order to take the blood, but the restraint was “medical” restraint and blood tests are still very normative medical procedures so there was not enough brutality to exclude the evidence.
With the background of Rochin, et. al. there was room for excluding the evidence in Mapp based purely on Substantive Due Process grounds, without tying it directly to the 4th Amendment.
So how and why does the court decide to apply the exclusionary rule to the states?

Easy answer – the court personnel has changed and they’re ready for it, but that’s not the kind of answer the court like to give.
Better answer – the court analyzed attempts by the states to come up with alternative remedies (the empirical argument)

Trespass – but there’s not much to recover and the suit is hard to bring.
Civil Rights claims – but the same problems exist in pulling it off
There were also all kinds of local and state immunities playing into the problem.
Ultimately, the alternatives didn’t work – and even the states have recognized as much and begun adopting the exclusionary rule themselves

his privacy any further.
KEY: The home is the paradigm of 4th Amendment protection.
Katz represents a MAJOR shift and is part of a larger shift in American law from property based concepts to other, often intangible, concepts.
Key questions become with what do we replace the property concepts? Technically, we’ve moved away from area as a consideration in 4th Amendment search jurisprudence, but it’s almost always lurking there somewhere in the consideration.
was inside, but the listening device was attached to the top of the phone booth. was recorded during a conversation in a glass enclosed phone booth
Summary of Follow-ups to Katz – also involved recording of conversations, but the decision was different. Why?


Key difference: There was an informant present, who consented to the recording.
The government had the complete conversation
Any time a D involves another person in a criminal plan, the D assumes the risk that the other person is an informant.
The Court says that this “listening in” is no different than an undercover police officer who goes back to the office and transcribes the conversation – except that the tape is actually more reliable evidence.
Harlan (the author of Katz) is upset with this extension by the Court. He thinks this is opening a Big Brother can of worms. He is concerned about the effect of this new standard on the rest of the public, which the majority has focused on “wrongdoers”.
Three things going on

Misplaced trust in a friend
Recording made
Transmission to the police remotely – Harlan is most concerned with this recording after transmission. It was actually “broadcast” and people not involved in the search could have had access to it as well – adding another dimension to the invasion.

Douglas was concerned about a lid being put on legitimate public discourse due to a fear of government recording.

Smith v. Maryland

Court said this was NOT a search

subject had no reasonable expectation of privacy in the transmission of the phone numbers themselves.
The content of the phone numbers is different than the content of the conversations themselves.
People knowingly and voluntarily turn over phone number information

They see it on their long distance bills
There’s a notice about the ability to trace numbers in the phone book. (maybe this constitutes a warning)
(pen registers) – 1979 case
Court distinguishes between recording phone conversations and numbers on a sort of can they/do they dichotomy
Exclusionary Rule and Exceptions 60Standing 58Sixth Amendment Right to Counsel 55The continuing status of Miranda 54Second-Level Miranda Analysis 52Custody 49Interrogation in the Wake of Miranda 46Miranda 43Confession 39Interrogation 39Officer John Stevens Search & Seizure Problem 34Special Needs Searches 33Stop and Frisk 32Consent Searches 28Analysis of the Vehicle Search Hypothetical 27Searches of Containers in Vehicles 25Vehicle Searches 25Arrest & Search Hypothetical 18Probable Cause to Arrest – A fair probability that: 17The Plain View Doctrine 14Probable Cause & Searches 11What kind of law enforcement activity triggers the 4th Amendment 7Overview of 4th Amendment Analysis 6Application of the 4th Amendment to the States 3Why do we start with the remedy (exclusionary rule) before we talk about the violation? 3Big Picture Issues 2