Criminal Procedure Outline

Criminal Procedure
Prof. Gabriel “Jack” Chin
Fall 2011
 
What is criminal procedure
Constitutional limitations on the investigative stage of criminal process
4th amend- search and seizure
5th, 6th, 14th interrogation and confessions
Incorporation
Barron v. Baltimore (1833)- no bill of rights apply to states
14 amend (1868)-limitations on the state to not deprive any person of life, liberty or property w/o due process OR deny any person the equal protection of the laws
To what extent does the 14th amend incorporate the bill of rights ( the extent to which people are protected by overreaching of state agents is a function of how much the 14th amend incorporates)(important bc most criminal cases are at the state level)
Palko v CT- Cardozo says fundamental rights are those that are the “fundamental principles of justice and liberty” which lie at the base of our civil and political institutions
Black=total incroporationist
Duncan v. Louisiana – question was about whether jury trial is a fundamental right
White- selective incorporation through DPC
Black- total incorporation through DPC
Fortas- 14th doesn’t have to be the same as the 6th amen
Harlan- Fundamental freestanding fairness doctrine, but doesn’t have to be jury trial
Currently all criminal procedure rights are incorporated except right to grand jury
Right by right basis based on whether the particular right is fundamental to an American system of justice
 
Values/Goals of Criminal Procedure
Reliability/accuracy- criminal cases require proof beyond reasonable doubt. This is a innocence weighted system, which encourages jury to vote not guilty
Fairness- does this mean we have to give everyone the same white shoe defense?
Limited govt- the fourth and fifth amend are build on the idea that govt should be limited
Efficiency- we want the ability to plea bargain and get through cases, but must also be tempered by fairness and limited govt
 
FOURTH AMENDMENT Search and Seizure
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” 
 
Scope of Fourth Amendment
Who is protected?
US v. Verdugo-Urquidez- a Mexican, arrested in the US, whose Mexican residence was raided by DEA was not among “the people” the framers had in mind
“the people” refer to a class of ppl who are part of a national community and have sufficient connection to this country to be considered part of the community
Who does it protect from?
Burdeau- v McDowell- Fourth amend limits govt action. It does not reach private parties, but can be implicated if there is police instigation or participation
Usually involves police but also applicable to firefighters and other public employees
 
 
What is a “Search”
The fourth amend is a bright line
If the conduct involves a search or seizure then fourth amend protections
If the conduct does not involve a search or seizure, then no fourth amen protections
Pre-Katz test: physical intrusion/trespass- property theory of tangible property (Boyd)
Olmstead- wiretap is outside the reach of the fourth amend
Katz- establishes test for a search
FBI put wiretap on phone booth to listen to conversation
The wiretap violated a reasonable expectation of privacy
“Fourth Amend protects people not places”
What to put out to public is not protected; but seek to preserve as private even in public is protected
Fourth Amend cannot be translated into a general right to privacy
Harlan concurrence: Two-prong test
Is there an actual (subjective) expectation of privacy
Can the subjective prong be overcome by govt setting the expectations?
Court usually just skip over this anyways
Is the privacy expectation one that society is prepared to accept (objective)
Objective prong analysis usually involves three factos:
The site or nature of the property inspected
Extent to the which a person has taken measures to keep information private
Assume the risk that anyone is an informant
No REP to what you put in public
Degree of intrusion
Black dissent: how is speech a person, house or effect??
US v. white- Can police use a CI w/ recording device w/o warrant?
There is an assumption of risk when you put information out there
Big distinction w/ katz
Katz had reasonable expectation of privacy in some ways but not others
If the person on the other end of the phone was transmitting to police=no violation
Just because there is some assumption of risk doesn’t mean there is zero expectation of privacy
Fourth amend provides no protection to a wrongdoer’s misplaced belief that the one he speaks with will not reveal his conversation (FALSE FRIEND argument) (pre-katz case is Hoffa) –You are not relying on the privacy of the place you are in, you are relying on the misplaced confidence that X would not reveal the wrongdoing
Includes false friend who is wearing wire for later listening
Includes false friend who is wearing wire for contemporaneous listening.
Harlan (dissent)-there is a reasonable expectation of privacy in a private conversation
Again think about fourth amend as trial right(evidentiary) vs const right (privacy)
Things held out to others do not have expectation of privacy
Handwriting, voice, numbers dialed on phone, bank records, color of car, smell of luggage
Smith v. Maryland- is there a reasonable expectation of privacy on numbers you dial?
Voluntarily turning info over to the phone company destroys REP
No subjective REP bc you know the phone company has this info
No obj bc voluntarily expose the info
How is it different than katz?  You always assume the risk in respect to the person you talk to, but not necessarily third party
GPS not a search when tracking you in public places (Knotts)
GPS is a search when tracking private actions (Karo)
Dog sniffing is not a search because you put “smell” out there
TAKEAWAYS
Assumption of risk for limited exposures (Smith)
No REP for systematic exposure (Knotts, oliver)
Court prefers bright line rules
Home always has special protections (Karo)
A seizure only occurs when your possessory interest is interfered with in a meaningful way. (Karo- beeper in can is not seizure)
Open Fields doctrine
Oliver –  Open fields are not accorded the protection under the fourth amend that are afforded to the land immediately surrounding and associated with home (ie curtilage)
Curtilage is found with four factors (dunn)
Proximity to home
Whether the area is included within an enclosure
Nature of use
Steps taken by resident to protect the area from observation
Marshall believes that it should follow positive law- if it is marked in a way that would constitute a trespass, it should constitute a REP (this is congruent with the societal expectation prong from katz- it is what the courts usually hold these days)
The rebut to this is that “no trespassing” signs don’t actually keep people out
Three tiers- (1)house-highest level of protection (2) curtilage- house in terms of textual fourth amend but lesser protection (3) open fields- not a searchàno fourth amend protections
Ciraolo -there is no REP for police viewing something from the air(even in curtilage) as long as (1)it is airspace generally open to the public(2)physically nonintrusive manner (3) does not reveal intimate activities traditionally connected with the use of a home
ct said the wall was only a desire of privacy but not an expectation of privacy bc it could have been seen with a variety of methods—basically said you have to have REP with regard to all modes of surveillance possible; nonetheless obj prong not met
Riley extends this to helicopters (suggests the burden is on the D to show that that kind of aircraft flight was unheard of). In this case it would have been illegal if it were an airplane (thus mode of intrusion mattered here); Also would have been different had there been wind, noise, dust, etc. (O’connor dissent says what matters is if public normally do it)
Technology requires two questions: (1) nature of the technology and (2) nature of the place being observed
Dow Chemical- no REP if police are using normal surveillance technology
Kyllo- Thermoimaging of interior of home is search bc nature of the place being observed and nature of technology being used
(1)home is sacred
(2) technology not in general public use
Bond- REP only what members of public ordinarily do(people don’t normally physically manipulate your luggage) (vs Riley –what publ