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Criminal Procedure
University of Connecticut School of Law
Gustafson, Kaaryn

Criminal Procedure
I)     Introductory Comments
a)      4th Amendment
i)        Freedom from unreasonable searches and seizures
ii)      Applies to both searches and seizures of property and the arrests of persons
b)      5th Amendment
i)        freedom from self-incrimination (involuntary confessions); federal Due Process Clause
c)      6th Amendment
i)        Right to Assistance of Counsel; Right to a Speedy Trial
ii)      Right to a Speedy trial applies directly to federal prosecutions and applies to state prosecutions by way of the 14th Amendment’s Due Process Clause.
d)     The U.S. Constitution sets out the minimum constitutional rights for criminal investigations and prosecutions; however, state constitutions can provide additional rights and limitations on government
e)      14th Amendment
i)        Provides : No state “may deprive an person of life, liberty, or property, without due process of law”
ii)      Incorporation of the 14th Amendment extends Due Process requirements provided under the Bill of Rights to the states.
iii)    Incorporation Debate: Extent to which the 14th Amendment makes the Bill of Rights apply to the states.
(1)   Majority view: Selective Incorporation
(a)    Not all rights in the Bill of Rights apply to the States, but only as particularly necessary to fundamental fairness [Duncan v. LA] (2)   Most pertinent Amendments of bill of Rights have been incorporated
(a)    4th Amendment – Freedom From Unreasonable Search and Seizures [Mapp v. Ohio] (b)   5th Amendment – Privilege Against Self-Incrimination [Malloy v. Hogan] (c)    5th Amendment – Guarantee Against Double Jeopardy [Benton v. Maryland] (i)     Does not include civil forfeiture [U.S. Ursery] (d)   6th Amendment – Right to Counsel [Gideon v. Wainright] (e)    6th Amendment – Right to a Speedy Trial [Klopfer v. North Carolina] (f)    6th Amendment – Right to Confront Witnesses [Pointer v. Texas] (g)   6th Amendment – Right to an Impartial Jury [Lewis v. U.S.] (3)   Recent Supreme Court cases interpreting clauses apply to states
(a)    State liberty interests protected by Due Process Clause generally limited to freedom from restraint, which imposes a typical and significant hardship on inmate in relation to ordinary prison life [Wolff v. McDonnell] (b)   Segregation for misconduct and refusal of presentation of witnesses at disciplinary hearing are not protected liberty interests [Sandin v. Conner] (4)   Only two Bill of Rights guarantees have not been extended to the state
(a)    Right not to be subject to excessive bail
(b)   Right to a grand jury indictment in felony cases [Hurtado v. California] (5)   Minority View: Total Incorporation
(a)    Effect of the 14th Amendment is to make all Bill of Rights guarantees directly applicable to the states.
f)       State and Federal Statutes and Rules
i)        Set forth procedures for administration of criminal justice
(1)   These procedures must not violate the U.S. Constitution
(a)    E.g. Federal wiretapping statute cannot authorize conduct that is prohibited by the 4th Amendment search and seizure guarantees.
(2)   Federal Rules of Criminal Procedure
(a)    Applicable only to federal crimes
(3)   State Constitutions: May provide additional rights beyond federal law, but no less
(a)    Selective Incorporation Doctrine requires state courts to apply nearly all the guarantees of the Bill of Rights in state criminal trials
(i)     States are free to place additional criminal safeguards in their own state constitutions
(ii)   If a state’s constitution clause articulates the same guarantee as the U.S. Constitution, state courts are free to interpret their state’s clause to provide more individual protection than the U.S. Sup. Ct.’s interpretation of the federal clause.
II) 4th Amendment
a)      Definition
i)        Guarantees “The right to the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures… and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searches and the persons or things to be seized”
ii)      Includes searches and seizures of property and arrests of persons.
b)      Limitations
i)        Limited to conduct by the government or agent of the government
ii)      Certain acts by private persons may be deemed “governmental”
(1)   Act as agent/instrument of government
(2)   Act due to government domination or coercion
(3)   Government participates too much in conduct
c)      What is a Search?
i)        Old Approach
(1)   Tresspassory invasion of person or tangible property [

ornia](officer found weapons when searching for jewelry)
(b)   However:
(i)     Any physical movement of an item makes it much more difficult to claim that the item observed was in plain view. [Arizona v. Hicks] (ii)   Scope of search unconstitutional where the officer manipulated contents of D’s pocket before discerning lump as contraband. [Minnesota v. Dickerson] iv)    Reasonable Place for the Officer to be?
(1)   Most observations from lawful or reasonable vantage points, including public roads or private property observable from public areas, or private areas to which public or police have been invited.
(2)   Most aerial overflights [California v. Ciraolo].
(3)   Most uses of devices to enhance senses (i.e. binoculars, flashlights, electronic beepers, drug-sniffing dogs, contorted position)
(a)    Police may use drug-sniffing dogs at routine traffic stops, without reasonable suspicion for drugs, provided additional dog sniff does not unreasonably extend the time of the traffic stop [Illinois v. Caballes].
(b)   Dog’s alert to the presence of contraband creates sufficient Probable Cause for an Auto Search without a warrant.
(4)   Open Fields beyond “curtilage” of home, unprotected by 4th Amendment. [Oliver v. U.S.] (a)    Steps owner takes are irrelevant (i.e. signs, gates)
(b)   Curtilage protected—extent of curtilage [U.S. v. Dunn] –
(i)     “PINS”
1.      Proximity of area to home
2.      Whether area is Inside fence around home
3.      Nature & Uses to which area is put
4.      Steps taken to protect area from observation
(c)    No such thing as “industrial curtilage” [Dow v. U.S.] (d)   Prison Cell – no privacy expectation [Hudson v. Palmer] (i)     Suspicionless searches of parolees not prohibited [Samson v. California].
(5)   Contraband – Yes/No Test [U.S. v. Jacobsen] A field test is performed to see whether or not substance