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Criminal Procedure
University of Cincinnati School of Law
Godsey, Mark A.

Criminal Procedure – Mini Outline
·         The Fourth Amendment
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.
3 Key Points About Amendment Provisions
Provisions in the Bill of Rights are only triggered when there is state action
i.e. If your neighbor breaks in & goes through your drawers its breaking and entering , if the police do it w.o a warrant it is a violation of the 4th A
Textually, they originally applied only to the federal govt. Only after the 14th A was passed were these rights incorporated to the states.
Incorporation – after the 14th A, the Bill of Rights was applied to the states (everything in this course has be incorporated to the states)
Exclusionary rule – In general, if one of these provisions is violated the evidence is inadmissible at trial ( can file a motion to suppress evidence obtained in violation of the constitution)
What is A Search?
Katz v. United States
·         The 4th A protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of 4th A protection But what he seeks to preserve as private, even an area accessible to the public, may be constitutionally protected.
·         KATZ TEST ( CURRENT LAW TODAY) 1) that a person have exhibited an actual (subjective) expectation of privacy (subjective prong) and 2) that the expectation be one that society is prepared to recognize as reasonable (objective prong)
United States v. White
Smith v. Maryland
·         The D in all probability entertained no actual expectation of privacy in the phone numbers he dialed, and that, even if he did, his expectation was not legitimate. The installation and use of a pen register, consequently was not a search, and no warrant was required.
Beeper Cases
·         US v. Knots- A person traveling in an auto on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another, and nothing the 4th A prohibited the police from augmenting the sensory facilities bestowed upon them at birth.
·         US v. Karo – The warrantless monitoring of a beeper in a private residence, a location not open to visual surveillance, violates the 4th A rights of those who have a justifiable interest in the privacy of the residence.
·         Dog Sniffs
·         US v. PlaceThe canine sniff is sui generis (no other investigative procedure is so limited both in the manner in which info is obtained and in the content revealed by the procedure), therefore the exposure of respondent’s luggage, which was located in a public place, to a trained canine did not constitute a search within the meaning of the 4th A. Dog sniff of exterior trunk upheld in IL v. Cabelles.
·         Open Fields and Curtilage
·         Hester v. United States : SC first enunciated the open fields doctrine- provides that entry of an open field does not implicate the 4th A
·         Oliver v. United States: SC held that the doctrine remains good law after Katz… an open field may include any unoccupied or undeveloped area outside of the curtilage of a home. An open field need be neither open nor a field as those terms are used in common speech.
·         General
·         curtilage which is incl. w/ the house
·         Beyond the curtilage becomes an open field which is not protected
·         As soon as you enter the open field, the 4th A protection stops
·         The public and the police lawfully may survey lands from the air
·         Open fields are used for nonintimate activities ( farming,livestock) … not the things that humans try to protect
·         How hidden is the area? Can it be seen from the air and any vantage point ?
·         How intimately used?
·         Public is defined as someone who could be flying overhead in an airplane
·         Even when you have no trespassing signs, you are knowingly exposed to the public
·         Four Factors to be Considered in Determining what is Curtilage
·         The proximity of the area claimed to be curtilage to the home
·         Whether the area is incl. within an enclosure surrounding the home
·         The nature of the uses to which the area is put
·         The steps taken by the resident to protect the area from observation by people passing it
California v. Ciraolo
That the area is within the curtilage does not itself bar all police observation. The 4th A protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thouroughfares. Nor does the mere fact than in indv. Has taken measures to restrict some views of his activities preclude an officer’s observations from a public vantage point where has a right to be and which renders the activities clearly visible. In this case, the observations took place in the navigable airspace in a physically non-intrusive manner. Any member of the public flying in airspace who glanced down could have seen everything the officers observed. Therefore the respondent’s expectation that his garden was protected from such observation was unreasonable and is not an expectation that society is prepared to honor.
·         Surveillance outside the curtilage, near a house, but not in an open field
·         California v. Greenwood – A person doesn’t have a reasonable expectation of privacy in garbage left outside the curtilage of the home for trash removal.
·         US v. Kyllo
·         Where the Govt uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a search and is presumptively unreasonable without a warrant.
·         Four Prongs: obtaining
·         1) by sense-enhancing technology
·         2) any information regarding the interior of the home
·         3) that could not otherwise have been obtained wit

e supported by oath or affirmation
·   Has to be particular
o    Payton v. New York
·         The Fourth Amendment, made applicable to the States by the Fourteenth Amendment, prohibits the police from making a warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arrest. Police must have consent and a warrant to enter into a suspect’s home in order to make a routine felony arrest.
·         An arrest warrant is not required to make a felony arrest in a public place.
·         Searches and seizures inside a home w/o a warrant are presumptively unreasonable
·         Objects such as weapons/contraband found in a public place may be seized by the police w/o a warrant
·         Seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is a probably cause to associate the property w/ criminal activity
All arrests, whether conducted in a public place or made in a private residence, must be supported by probable cause.
·         Proceedings after a warrantless arrest: a “Gerstein hearing”
§ The 4th A requires a judicial determination of probable cause as a prereq to extended restraint of liberty following arrest
§ Even though is able to make a warrantless public arrest, a D has a right to a Gerstein hearing within in 48 hours, in which it is proved that there was PC at that moment
·         Judges require these to be done as soon as possible 
§ If a judge determines that you need one more fact – have to let them go until you get probable cause
·         Executing an arrest: use of force
An arrest, even one based on probable cause, constitutes an unreasonable seizure of the person if the method of making the arrest is unreasonable
TN v. Garner – SC held a police officer may not use deadly force to prevent the escape of a fleeing felon, unless she has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, if she is not immediately taken into custody
Graham v. Connor – excessive force claims should be analyzed under the 4th A
·         Exceptions to the Payton Rule
§ Minnesota v. Olson
·         Ex. where didn’t get a warrant when inside a dwelling
·         Discusses exigent circumstances exception –
A warrantless intrusion may be justified by hot pursuit of a fleeing felon, or imminent destruction of evidence, or the need to prevent a suspect’s escape, or the risk of danger to the police or