Criminal Procedure Outline
Steps in a Criminal Proceeding
1. Arrest- When a police officer has probable cause to believe that a suspect has committed a crime, the officer makes an arrest. An arrest may occur either with or without a warrant (most are made without a warrant). Arrest usually involves taking the suspect into custody and transporting him to the police station.
2. Booking- At the police station, the suspect undergoes “booking,” which includes entering information about him into a police blotter, and photographing and fingerprinting him.
3. Filing complaint- A prosecutor now decides whether there is enough evidence to file charges; if so, the prosecutor prepares a “complaint.”
4. First appearance- After the complaint has been filed, the suspect is brought before a magistrate. In most states, this is called the “first appearance.” Here, the magistrate informs the defendant of the charges, notifies him that he has the right to counsel, and sets bail or releases the defendant without bail.
5. Preliminary hearing- If the case is a felony case, a “preliminary hearing” is held. Again, this is in front of a magistrate, and usually involves live witnesses so the magistrate can determine whether there is probable cause to believe that the defendant committed the crime charged.
6. Filing of indictment or information- In the federal system, or in a “grand jury” state, the next step is for a grand jury to hear the prosecutor’s evidence and to issue an indictment. In a non-grand-jury state, the prosecutor now prepares an “information,” reciting the charges.
7. Arraignment- After the indictment or information has been filed, the defendant is “arraigned”; that is, he is brought before the trial court and asked to plead innocent or guilty.
8. Pre-trial motions- Defense counsel now makes any pre-trial motions.
9. Trial- Next comes the trial. If the charge is a felony, or a misdemeanor punishable by more than six months in prison, all states (and the federal system) give the defendant the right to have the case tried before a jury.
10. Sentencing- If the defendant pleads guilty or is found guilty during the trial, he is then sentenced (usually by the judge, not the jury).
11. Appeals- A convicted defendant is then entitled to appeal (e.g., on the grounds that the evidence admitted against him at trial was the result of an unconstitutional search).
12. Post-conviction remedies- Both state and federal prisoners, even after direct appeal, may challenge their convictions through federal-court habeas corpus procedures.
Searches and Seizures
I. 4th 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.”
II. What is a Search?
a. Katz v. United States (1967)
i. Facts: D was convicted of transmitting wagering information by public telephone in violation of a federal statute. At trial, the Gov’t introduced evidence of D’s end of the telephone conversations, overheard by the FBI, who had attached an electronic listening device to the outside of the public telephone booth.
ii. Holding: A 4th Amendment search or seizure only takes place when a person’s “reasonable expectation of privacy” has been violated. The 4th Amendment protects the privacy of people, and when the person entered the phone booth to place the call, he meant to exclude the uninvited ear. A warrant should have been obtained to listen in to the conversations. Searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the 4th Amendment- subject only to a few specifically established and well-delineated exceptions.
b. Open Fields
i. The 4th Amendment allows for the search of open fields.
1. The 4th Amendment applies if police search a person’s home or the “curtilage” immediately adjacent to this home.
ii. Oliver v. United States (1984)
1. Facts: The police received reports marijuana was growing on a farm. They went to the farm and found the marijuana. The defendant had hung “No Trespassing” signs around his property.
2. Holding: An individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home. The Amendment does not protect the merely subjective expectation of privacy, but only those “expectation[s] that society is prepared to recognize as ‘reasonable.’”
iii. United States v. Dunn (1987)
1. Facts: The DEA obtained a warrant to put electronic tracking devices on D’s partners purchases. The devices led to a barn on D’s ranch, which was 50 yards from the house’s fence, and was itself surrounded by a fence. The DEA and police officers made a warrantless entry onto the property and saw a drug lab. They made two more warrantless entries to confirm the presence of a lab.
2. Holding: To determine whether something is part of the curtilage, four factors should be considered: (1) the proximity of the area claimed to be curtilage to the home (2) whether the area is included within an enclosure surrounding the home (3) the nature of the uses to which the area is put (4) the steps taken by the resident to protect the area from observation by people passing by. The barn was not curtilage because: (1) The barn was located 50 y
d. Thermal Imaging of Homes
i. If the government obtains special high-tech devices, not in general civilian use, and employs them from public places to gain “views” that could not be had by the naked eye, the use of such devices will be considered a search.
ii. Kyllo v. United States (2001)
1. Facts: DEA agents thought D grew marijuana in his house with high-intensity heat lamps. They obtained a “thermal imager” and pointed it at D’s house from across the street. The images show that D’s garage was much hotter than the rest of his home. The agents use this information to get a warrant to search the defendant’s house, and find marijuana being grown under lamps in his garage.
2. Holding: The use of the imager here was a 4th Amendment search, which was presumptively unreasonable without a warrant. Since the device was not in general civilian use, and enabled the agents to learn information about what was going on inside the house, its use does not fall within the plain view exception.
e. Searches of Trash
i. The search of trash is not a search under the 4th Amendment.
ii. California v. Greenwood (1988)
1. Facts: An officer got a tip D might be trafficking narcotics and asked the garbage collector to keep D’s garbage separate from the others. The officer inspected the garbage and found evidence of narcotics use. A warrant was issued and D was arrested.
2. Holding: Trash or other abandoned property will normally not be material as to which the owner has a reasonable expectation of privacy. Therefore, when a person puts trash out on the curb to be picked up by the garbage collector, the police may search that trash without warrant.
f. Observation and Monitoring of Public Behavior
i. The observation and monitoring of public behavior is not a search under the 4th Amendment as long as the information obtained was in plain view or turned over to a third party.
ii. United States v. Knotts (1983)
Facts: A chemicals manufacturer notified police that a former employee, B, had been stealing chemicals that could be used to make drugs. Visual surveillance of B showed he was purchasing similar chemicals from another company. The officers installed