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Criminal Procedure
University of Cincinnati School of Law
Goldman, Lee

Criminal Procedure- Godsey

The Criminal Process: Failure and Legitimacy
4th Amend – Reasonableness clause + warrants clause (came from British trying to quarter troops etc…)
5th amend’s privilege against compulsory self-incrimination (came from desire to prohibit inquisitions)
6th amend – interrogations: Does a person have a right to an attorney when they are being interrogated?

***3 Important Things About these Amends

These amends only apply when there is state action
Only apply to the fed gov – not states (4th, 5th, & 6th have been incorporated)
If one of these provisions is violated then the evidence stays out – the exclusionary rule

Fourth Amendment: An Overview
A. General Principles and Relevant Amendments
a. Search and Seizure- Constitutional restraints on the government’s ability to search and seize its citizens; 4th Amendment
b. Interrogations and Confessions- What restraints apply to the government’s ability to get a confession from someone? Due Process of 5th and 14th
c. Fifth Amendment’s Privilege Against Compulsory Self-Incrimination: No person… Shall be compelled in any criminal case to be a witness against himself.
d. Sixth Amendment’s Rights to Counsel: In all criminal prosecutions, the accused shall enjoy the right…to have the Assistance for his defense.
B. Policy Reasons behind the Bill or Rights
a. Privacy
b. Protect the Innocent
c. Protection of Democracy
C. The Fourth Amendment:
a. The Text:
i. 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 probably cause, supported by Oath or affirmation and particularly describing the place to be searched, and the persons or things to be seized.
b. Reasonableness clause:
i. Does people mean citizens? Or does it mean everyone?
1. It says citizens in other parts; but it saw We the people in the Constitution
2. Pretty much protects anyone inside in the US, we assume it protects legal aliens
3. May include to US citizens living abroad
ii. What about a business? Is that included?
iii. What is a search? What is a seizure?
iv. What is unreasonable?
c. Warrants Clause:
i. Oath or affirmation- sworn before a judge
1. Officer getting warrant must swear an oath/affidavit before judge
ii. Person?
1. Probably doesn’t apply to Americans abroad
iii. What if the confession is during an interrogation, not during a criminal case?
d. What is a “search and seizure in the Fourth Amendment?
i. Search® Protects a PRIVACY INTEREST
ii. Seizure® Protects a POSSESSORY INTEREST

III. Passing the Threshold of the Fourth Amendment 86
A. What Is a “Search”? 86

HISTORY – mention this in an essay

The OLD Trespass Doctrine: had to be actual physical intrusion onto someone’s property b/f it was a search under the 4th Amend

i. Olmstead:
1. During prohibition the gov tapped the phone line at a warehouse, the gov followed the phone line & tapped it
2. Holding: No trespassing on the property so no violation.
ii. Goldman
1. The gov planted a microphone in an office
a. They put a sophisticated “cup” against the wall to get evidence
2. Holding: was no physical trespass in the office so there wasn’t a

i. ® the privacy aspect has to do with searches, sometimes it has nothing to do with privacy and that’s the seizure aspect

Harlan’s Concurrence: Refinement of clarification of “justifiably relied” in majority

Katz Two Prong Test – Still survives today; to determine when a search has occurred

i. A person has exhibited an actual expectation of privacy (subjective)
ii. The expectation is one that society is prepared to recognize as reasonable (objective)

First Prong: Subjective expectation of Privacy

i. Problem: Anyone could say that they expected anything to be private; second prong takes care of this
ii. If you have a convo in the woods do you have an expectation of privacy? What if the government says they’re going to put listening devices on the pole? What if they’re going to have random searches of houses?
® The argument is circular, because all the government has to do is intrude and do it to get rid of the expectation; it is tethered on the government, the entity which the 4th Amendment is supposed to be protecting you against. By changing our expectation, the government is pushing the line back from what it has been previously. If you have no expectation of privacy because the government is intruding everywhere, there is no 4th amendment protection.