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

Crim Pro Outline:
Focus on US Constitution: Many aspects of crim. Pro. Are regulated by the US constitution. Most federal constitutional provisions concerning crim pro are binding on state proceedings as well as federal ones.
Applicability of Bill of Rights: In deciding how the federal const. applies to state criminal prosecutions, the SC follows the selective incorporation approach. Under this approach if any aspect of a right is found to be so necessary to fundamental fairness that it applies to the states, then all aspects of the right apply.
Selective incorporation: “implicit in the concept of ordered liberty,” “fundamental to the American scheme of justice.”
Is it rooted in our history?
Does it shock the senses?
o        Rochin v. California: “Shocks the Conscience”
o        Facts: Having some information that Rochin was selling narcotics three deputy sheriffs forced open the door of his room and found him sitting partly dressed on the side of the bed upon which his wife was lying. The police saw two capsules on the night stand, Rochin put them in his mouth. Stomach was pumped to produce vomiting, capsules contained morphine.
o        Rule: Convictions can not be brought about by methods that offend a “sense of justice
Is if fundamentally unfair?
Is it reliable? (Twining v. New Jersey)
All but two rights applicable to states: All bill of rights guarantees have been held applicable to the states, except for two:
Bail: eighth amendment guarantee against excessive bail.
Grand jury indictment: the fifth amendments right to a grand jury indictment ( so that a state may decide to being a prosecution by using an “information” prepared by the prosecutor rather than a grand jury).
Cases incorporating rights: 
 5th amendment self-incrimination clause
Twining v. New Jersey (1908): not incorporated
Malloy v. Hogan (1964): incorporated
5th Amendment Double Jeopardy Clause
Palko v. Connecticut: Not in incorporated
Benton v. Maryland: Incorporated
6th Amendment Jury Trial Clause
Duncan v. Louisiana (1968): Formally incorporated
The one exception to lock stock and barrel incorporation—lots of questions the court left up in the air (right to unanimous jury? 12 person jury?, etc)
6th amendment right to counsel
Powell v. Alabama (1932): Not incorporated, but finding the 14th amendment right to counsel under limited circumstances (complex case, special circumstances surrounding D)
Gideon v. Wainwright (1963): Incorporated for all felony cases
Court said this is such a fundamental right, that it applies retroactively. Thousands of cases had to be re-tried. 
6th amendment right to a speedy trial
6th amendment compulsory process clause (the right to present a defense)
Washington v. Texas (1967)
6th amendment confrontation clause (right to cross-examine)
Pointer v. Texas
8th Amendment Cruel and Unusual Punishment
Robinson v. California (1962)
Const. Claims in fed. Court: A D in state criminal proceeding can of course raise in the proceeding itself the claim that his federal constitutional rights have been violated.
Federal habeas corpus: But the state criminal D has in some situations a second chance to argue that the state trial has violated his fed. Constitutional rights; he may bring a federal action for a writ of habeas corpus. The D may bring a habeas corpus proceeding only after he has been convicted and has exhausted his state appellate remedies. The petition for federal habeas corpus is heard by a federal district court judge. If the judge finds the conviction was obtained through a violate of the D’s const. rites, he can order the D released.
Limits: There are significant limits on the kinds of arguments a D can make in a federal habeas corpus proceeding. Here are two:
Search and Seizure cases: (Stone v. Powell): In search and seizure cases if the state has given D the opportunity for a “full and fair litigation” for his 4th amend. Claim, D may not make this argument in his habeas corpus petition, even if the federal court is convinced the state court reached the wrong constitutional conclusion
Mistakes of law: Under a 1996 federal statute, a federal court can’t give habeas relief for a state-court mistake of law unless the state decision was either “contrary to” or an “unreasonable application of” some clearly established principle of federal law as determined by the SC.
Arrest: Police make arrest when they have probable cause.
Booking: Entering information about suspect into police blotter, photographing, fingerprinting.
Filing Complaint: A prosecutor now decides whether there is enough evidence to file charges, if so he prepares a complaint.
First appearance: After complaint is filed, the suspect is brought before a magistrate. In MO associate circuit judge. 
Bail is set
Preliminary Hearing
Is there probable cause to believe D is person who committed crime—is determined by magistrate
If no probable cause, charge is dismissed
Grand Jury
They make a determination of probable cause, if they find it, they issue and indictment.
If no probable cause they issue a No True Bill
Indictment/ Information
Information filed by prosecutor after preliminary hearing
Indictment comes from the grand jury
Arraignment (in Circuit/District Court)
Bail is reviewed
Counsel is addressed again
Plea is entered
Pre-trial proceedings
Defense investigation
1)      Trial
2)      Appeal
3)      Certiorari
a.       Once you get to this point, your conviction it final
b.      If don’t file a petition for certiorari, becomes final on last day you could have filed (90 days from conclusion of state proceedings) or denial of cert.
4)      State habeus corpus/collateral attack
a.       I’m suing you to compel you to release me
b.      Can use it, to raise a right that was newly created
c.       Takes place in the trial court, but really a separate lawsuit attacking the first judgment in the trial court.
d.      Can go through the whole process again, from here.
5)      Appeal
6)      Certiori
7)      Habeus: If you have a federal claim you can file a petition for habeus corpus in the US District Court
8)      Can appeal, but have to be issued a COA
9)      Certiorari
Retroactivity becomes an issue anytime the SC interprets a case that creates a new rite or expands an existing rite.
Finality (settled expectations, reliance on superior law, Comity (the mutual respect for an independent sovereign)) v. Rights of Individual (enforcement of the constitution, remedy for violations of constitution)
What triggers retroactivity?
The SC hands down the case using a new rule.
How do we know if it’s a new rule?
New obligation
New rule is not dictated by precedent
Watershed principle of constitutional law
Reliability of the judgment
Exempts individual from liability or punishment of the crime
o        There is the difference between incorporation and retroactivity. Every time a new rule is incorporated, not everyone gets a new trial. 
o        Gideon v. Wainwright and Duran v. Missouri—had to do with a MO constitutional provision, that gave women an automatic pass on jury service. This was applied retroactively, which resulted in many re-trials.
o        Historically there was no enemy combatant classification, used to be either a prisoner of war or a criminal. 
o        What’s the difference between POW and enemy combatant: 
o        Your gov’t is informed when u are in custody
o         Right to have your family informed
o        Right not to be tortured when being interrogated.
o        You get released when the war is over
o        Basically POW have certain rights, but only to degree custodian agrees to be bound by those rights.
o        Criminal Defendant: 
o        Right to counsel
o        Right to confront accusers
o        Right to cross-examine witnesses, etc.
o        Enemy combatant: Are subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.
o        Ex parte Endo: 
o        Rule: When there is detention there has to be a due process so that people understand the factual allegations, which causes them to be detained.
o        There has to be a forum in which they can disprove the presumption which has them incarcerated.
o        Ex parte Quirin
o        Rule:Assumes the court has habeas corpus jurisdiction over ‘enemy aliens’
o        Ex parte Yamashita: 
o        Facts: Japanese general accused of war crimes in Philippines during MacArthur’s return
o        Unlawful belligerent classification applied to uniformed general because he was accused of violating the law of war
o        Camp X-Ray Cases:
o        Rasul v. Bush: Habeas corpus jurisdiction includes enemy aliens
o        Hamdi v. Rumsfeld: Due Process forbids indefinite detention without notice of charged and opportunity to defend in a fair trial
o        Hamdan v. Rumsfeld: Military Tribunal jurisdiction over enemy alien must be explicitly conferred by Congress
o        Scope of Habeas Corpus: Applies to prisoners in State and Federal custody: Any person in custody of US who is being held in violation of laws, constitution, or treaties of US.
o        Hamdi v. Rumsfeld
o        Three statutes at Issue:
o         AUMF
o         Non-Detention Act
o        Habeus Corpus Statute
o        What is the ruling that results in Hamdi’s being imprisoned?
o        Mob’s declaration—his classification as an enemy combatant
o        Three elements of basic due process:
o        Notice of the facts
o        Fair opportunity to rebut those facts
o        Neutral decision maker
o        Have to weigh interests
o        Liberty interest of a person who is erroneously detained v. Burden of providing due process against the government’s interest. 
o        Important from case:
o        Rule: The basic due process model that universally applies: Acitizen in custody has a right to some form of due process to protect his interest.
o        Habeus Corpus jurisdiction is going to reach US citizens in US custody anywhere.
The Exclusionary Rule:
Provides that evidence obtained by violating D’s constitutionally rights may not be introduced by the prosecution at D’s criminal trial, at least for purposes of providing direct proof of D’s guilt.
Judge Made: Is a judge made rule, not a statutory one. Rule is binding on both state and federal courts. 
Not constitutionally required: The SC has held that the exclusionary rule is not required by the US Const. US v. Leon Instead the rule was created by the SC as a means of deterring the police from violating the Fourth and Fifth amendments.
Application: In general, the scope of the exclusionary rule has been steadily cut back during the Burger and Rehnquist years.
Wolf v. Colorado
Issue: Whether the basic right to protection against arbitrary intrusion by police, demands the exclusion of relevant evidence obtained by an unreasonable search and seizure.
Rule: The security of one’s privacy against arbitrary intrusion by the police, is implicit in the concept of ordered liberty and as such is enforceable against the State’s through the Due Process Clause.
Mapp v. Ohio
Facts: Three officers arrived at appellants house, pursuant to information that a person was hiding out in the home who was wanted for questioning in connection with a recent bombing. Appellant, refused to admit them without a search warrant. Officers sought entrance some three hours later, door was forcibly opened. House was searched and appellant was convicted based on this evidence. At the trial no search warrant was produced by the prosecution, nor was the failure to produce one explained or accounted for. 
Rule: All evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in state court.
United States v. Leon
Facts: Large quantities of drugs were suppressed on the ground that the warrant had not been issued on probable cause, i

get protection two tests must be satisfied: 1) the person must show an actual, subjective expectation of privacy 2) and the expectation must be one that society recognizes as being reasonable.
Curtilage: The reasonable expectation of privacy concept intersects with the concept of curtilage. The curtilage of a building typically refers to the land and ancillary buildings that are associated with a dwelling. In the case of typical private home for instance, the front and back yard and garage are all part of the curtilage. 
Significance of cartilage: In general a person has a reasonable expectation of privacy with respect to the curtilage, but not with respect to open fields outside the curtilage.
Oliver v. US: D owns a 100 acre farm, with a farmhouse near one edge. D grows pot in the very middle of the 100 acres. The fields are not part of the curtilage, therefore if officer enters and photographs the pot he is not infringing on D’s reasonable expectation of privacy, and is thus not committing a 4th amendment search.
Trash and abandoned property:  
California v. Greenwood: Trash will normally not be material as to which the owner has a reasonable expectation of privacy. Therefore when a person puts out trash on the curb to be picked up the police may search the trash without a warrant.
In general, the police do not commit a 4th amendment search where they see an object that is in the plain view of an officer who has a right to be in the position to have that view.
High tech devices: if government obtains special high tech devices not in general civilian use, and employs them from public places to gain “views” that could not had been seen by the naked eye, the use of such devices will be considered a search.
Kyllo v. US: Drug agents obtain thermal image inside a house, shows garage is much hotter than rest of the house. Uses this information to get a warrant to search D’s house, find pot.
Held: The use of the imager here was a 4th amendment search , which was presumptively unreasonable without a warrant.
Aerial observation: When the police use an aircraft to view D’s property from the air, anything the police can see with the naked eye falls with the “plain view” doctrine (as long as the aircraft is in public, navigable airspace)
CA v. Ciralo; Florida v. Riley
What constitutes a search?
The plain odor doctrine: The SC has at least implied that just as viewing objects that are in plain view does not constitute a search, so perceiving the nature of an object by the smell it emits does not constitute a search.
US v. Place( use of dogs to perform a canine sniff test on luggage in an airport does not constitute a 4th amendment search of the luggage).
United States v. Karo:
Facts: Installed a beeper in a container of chemicals with the consent of the original owner of the container. 
Holding: The court found that monitoring the beeper’s signal, was an unreasonable search. The only other way to know if the container was there would be to go into the home—signal from the beeper constituted an unreasonable search. 
Search issue isn’t probable cause of the crime, it is probable cause that a search will produce evidence of a crime. 
A warrant can become stale, if evidence is from a year ago, 6 months, etc, that mite not be enough for a court to find if you search
today you will find something.
o        Where Requirement applies: The requirement of probable cause applies to two different situations: 1) before a judge or magistrate may issue a warrant for a search or arrest, she must be satisfied that probable cause to do so exists and 2) before the police may make a warrantless search or arrest (permissible only in special circumstances) the officer must have probable cause for that search or arrest. 
o        Source of requirement: Only case 1 above, is expressly covered in the 4th amendment
o        Concrete Basis: Police officer needs some sort of concrete basis upon which a reasonable person would conclude that the individual in question has committed a crime ( in the case of arrest) or that the specific items related to criminal activity will be found at the particular place (in the case of a search).  
Requirement: The meaning of the term probable cause is not exactly the same in the search context as in the arrest context. 
Probable cause to arrest: (it must be more likely than not)
A violation of the law has been committed
The person to be arrested committed the violation
Probable cause to search: ( it must be more likely than not)
The specific items to be searched for are connected with the criminal activities and
These items will be found in the place to be searched. 
No admissibility limitation: Any trustworthy information may be considered in determining whether probable cause to search or arrest exists, even if the information would not be admissible