I. CRIMINAL PROCEDURE BISHARAT FALL 2013
II. Constitutional Foundation
A. 4TH AMEND S&S= rt of ppl to be secure in their persons, houses, papers, & effects, free from unreasonable searches & seizures + no Warrants w/o probable cause & affidavit & particularly describe place to search/persons or things to be seized
B. 5TH AMEND DP/SI= cannot force person to be witness against himself (in crim case) + feds can’t deprive ppl of life, liberty, or property w/o due process of law
1. (Miranda rt to be informed of this-applies to states)
C. 6TH AMEND ATTNY= must be informed of nature and cause of accusation + rt to effective assistance of counsel
D. 14th Amend S-DP/PI/EP= states cant violate due process, priv&immunities, equal protection
E. Incorporation & Due Process
1. Pre-14thA→ BOR only applicable to feds
2. 14thA→ says STATES cant “deprive any person of life, liberty, or property w/o due process of law”
3. Post-14thA Incorporation Debate→ does 14thA make the BOR applicable to states also? Mostly yes [idea: gotta incorp some of BOR cuz denial of them would be denial of DP]
a) 3views:
(1) Fundamental Rts Approach: only incorp rts that are “fundamental to ordered liberty” → BOR is indicative of wats fundamental but not dispositive (some BOR may not be, but cud be some not in BOR that r fundamental) (would evaluate whether the rt is fundamental based on the facts of each case)
(2) Total Incorp: all BOR incorp, no more no less- mitigates sep of powers/federalism concerns → never got a majority but is winner by default (cuz they always uphold the rts)
(a) only 2 rts NOT incorp: grand jury indictment req + uninanimous verdict req
(b) Rts Generally Incorp: 1, 4, 5, 6 (Duncan v LA)
(i) 4th amend Exclusionary rule applies to States [Mapp v Ohio]
(a) Mapp→ evi inadmissible in state ct if obtained during an unrsbl s&s- fundamental/ordered liberty+ req as part of 4thA
(b) Pros:
(i) Deterrence! Prevent future const violations (not just remedy old ones)
(ii) Other remedies haven’t been as effective
(iii) result since mapp: less cont violations
(iv) close loophole that states cud illegally seize evi then give it to feds ⇒ now states and feds always have same scope of evi
(c) Counter/cons:
(i) 4thA doesn’t textual provide for E rule
(ii) stare decisis
(iii) real issue is about state power- crim pro is state affair
(iv) distinguished from 5thA fear of innocent confessions (evi is bad), problem is reliability→ 4thA evi is good, problem is processss (so we shouldn’t extend rule exclude reliable evi)
(3) Selective Incorp (bag-baggage approach): incorp some BOR but not all, can also incorp nonenumerated rts→ but if any part of a rt is so important to fund fairness that its incorp, then allll aspects of the rt r incorporated (ex. Da in state trial wants to talk about Δ not taking the stand(baggage), since 5thA self incrim prohibits this in federal trials it also does in state trials)
4. Pros vs Cons—major disputes
a) Federalism!! – how much control should the states have?
(1) Extreme: no BOR incorp—states can do warrantless searches, coercive interrogation all the time!
(2) Extreme: all BOR incorp—BOR becomes national code of crimpro, leaving states no discretion (10thA says states get left over powers)
(a) Con: prob wouldn’t get any extra rts outside BOR
b) Legislative history – wat did framers really intend? textual issues
c) Sep of Powers/Appropriate role of judges – y do they decide incorp/wat is fundamental?
5. Provides a Floor ⇒ states can offer greater protections (ex. Alaska req. videotape all confessions)
III. 4th Amendment
A. Does 4thA even apply? (if not then don’t need a warrant and nothin is illegal)
1. Is Δ a ppl?
a) Not foreign national temporary in us
b) Not foreign police searching ppl abroad, us citizen or not
c) Could likely be an undocumented immigrant who has accepted some societal obligations in us
2. Govt conduct?
a) Police on or off duty
b) All state actors—public school principal, city housing inspector, fireman, meter reader
(1) Activity conducted according to federal mandate that strongly encourages it—ex. Alc/drug testing of railroad ees? Yes 4th amend search
(a) depends on the intent/function of the activity (not just who the person is) ex. Fireman investigating arson cause is a state actor but likely not a state actor when entering to put out fire
c) Not searches by private parties ex. Loss prevention guard at macy’s
(1) Test: whether private citizen taking into acct all of the circs of the case, must be regarded as having acted as an instrument or agent of state
(2) Cops can follow in private parties footsteps→ fedex opened package w/ drugs, resealed it
on car (Jones)
(a) Traditional property rts—physical govt trespass of protected area— search! (alt to katz test!)
(i) (no consent of previous owner of container—Δ already owned his car)
(ii) Used to say: if area u exposed could possiblyyy be seen by any pub or cop then that’s sufficient to make it not a search(aerial surveillance cases)–likelihood isnt very high (That a person will rent helicopter and fliy over ur yard) but that doesn’t matter — even a very unlikely defeat of ur privacy interest is not a search
(iii) Jones: idea that only having a theoretical expect of privacy is less clear/true now→ that may not be sufficient→ according to alito concurrence u may need more than a theoretical chance
(iv) (but normative not totally abandoned cuz of trash case etc)
(c) NO obj rsbl expect of privacy ⇒ can search w/o warrant
(i) 3rd party doctrine→anything u tell other ppl – assumption of the risk that theyd tell
(a) Tension: y do u have to give up everything just cuz u allowed 1person in for limited purpose?! Uve gotta give out some info to live in society!
(i) Jones/jard(sniffcurt) first cases to finally question this basic tenant of 3rdp → think cell phones have gps
(b) examples
(i) Websites u visited
(ii) Outgoing snail mail
(iii) Subject lines/recipients of emails
(iv) Bank records
(v) Pen register
(vi) NSA gather of metadata (everything but the content of the communications)
(vii) Aggregate: doing all of the above at once still isn’t a search → but that’s being challenged now?- that certainly lets the cops know lots about u
(ii) Garbage (likely still no privacy still even if in curtilage) (also 3rdp cuz ur giving it expressly to garbage man→ problem: its not really voluntary to leave ur trash out there)
(iii) Open fields→ anything outside home and its associated curtilage (barn cud be open field if its contents not protected)
