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Criminal Procedure
University of Dayton School of Law
Hoffmeister, Thaddeus

I. The “Philosophy” of Constitutional Criminal Procedure
A. The Central Constitutional Provisions
B. Themes in Constitutional Criminal Procedure
            1) Controlling Discretion
            2) Criminal Procedure as Evidence Law
            3) Race and ethnicity of suspects              
            4) Role of the Lawyer
            5) Social Science and other Disciplines
II. Deductive Briefing
A. Interpretive Method
1) The Role of the text
2) Constitutional History and Original Intent
3) Constitutional Structure
4) Precedent
5) Evidence of American traditions, customs, and practices
6) Contemporary Morality and Attitudes
7) Considerations of practicality and Prudence
Deductive v. inductive reasoning v. balancing
Deductive: use either a syllogism or a theorem-deductive reasoning is pretty much fool proof…inductive you use a hypothesis, analogy or generalization.
What type of arguments do you see in the deductive realm? Syllogism is the strongest argument that you could make.
What type of arguments do you make for inductive reasoning? Hypothesis-àanalogy-à generalization
B. The Logic of Constitutional Criminal Procedure
1) Overview of the forms of argument
            a) Covington’s Explanation
            b) Deductive Reasoning in Legal Analysis
            c) Inductive Reasoning in Legal Analysis
                        1) Inductive Generalization
                        2) Analogy
            d) Balancing
2) Practice in Deductive Briefing
                a) The Atwater Case
·         Atwater v. City of Lago Vista:The Fourth Amendment allows a warrantless arrest for a minor criminal offense, such as a misdemeanor seatbelt violation punishable only by a fine, so long as there is probable cause that the violation has been committed.
b) The Mapp Case
·         Mapp v. Ohio The court stated that the exclusionary rule also applies to states, meaning that states cannot use evidence gained by illegal means to convict someone. This overturned the Wolf ruling. The court’s rationale is based on the connection between the fourth and the Fourteenth Amendment. The court believed that if the right of privacy stated in the Fourth Amendment is valid with regard to action by the states, so too should be the exclusionary rule.
III. The Steps in the Criminal Process
1) Report of Crime- Witness, victim, officer. Investigation is often done by the grand jury. The grand jury can both investigate and adjudicate.
2) Pre-Arrest Investigation- Prior to arrest, the officer will determine whether a crime was committed, and if so then who did it.
            3) Arrest- Arrest with or without a warrant, suspect has to be Mirandized.
4) Booking- They have to know who they’re holding, if you’re in a gang and can’t be next to another gang member, things of that nature.
5) Preliminary Arraignment- First Appearance- Put in front of a judge, set bail, receive copy of complaint. This is an important part in the criminal process. The right to counsel is attached. There are a number of factors to be considered when deciding bail; flight risk, ties to the community, money, priors
6) Continuing Investigation-lineups, DNA, photospreads, searches, subpoenas. Show up is when the suspect is actually brought to the complainant.
7) Preliminary Hearing-Charges are read to the suspect and filed by the prosecutor. If the defendant pleads guilty, preliminary hearing can be waived. It is essentially a discovery tool for the defense. Even when you deal with your client, it’s very easy not to know what the government has against them; it is beneficial to the defense in that respect. If you have to prove probable cause that Juan has committed the murder. Call the nephew of the woman who was murdered.
8) Grand Jury Review- Grand jurors are very beholding to the prosecutor. They can call you before the grand jury and you will not even know about it.
            9) Filing the Information or Indictment
            10) Arraignment on the Information or Indictment
11) Pretrial Motions-Motion to suppress evidence, motion to dismiss, notifications for special defenses. Very important footnote here is double jeopardy. When does double jeopardy attach in a bench trial? When the first witness is sworn in. As for a jury trial, when the jury is sworn in.
            12) Trial                                                                              
13) Sentencing- Determinant-when you get a specific time, or indeterminant sentencing- you get 10 to 20 years. Federal guidelines are determinant sentencing. Why do you want indeterminant sentencing? You want someone to get rehabilitated in jail.
            14) Appeals- You want to file an appeal with 30 days.
            15) Post-conviction Remedies-Haebeus, insufficient counsel.
I. What Is a Search?
A warrant is not always required for a search. The only prohibition is against unreasonable searches and seizures. It doesn’t really give you a remedy either. The remedy is typically seen as the exclusionary rule.
A. The Katz Test Articulated
The modern definition of “search” was first articulated in Katz, which is generally referred to as the reasonable expectation of privacy test.
Katz v. United States: The Court ruled that Katz was entitled to Fourth Amendment protection for his conversations and that a physical intrusion into the area he occupied was unnecessary to bring the Amendment into play. “The Fourth Amendment protects people, not places,” wrote Justice Potter Stewart for the Court.
B. Majority View versus Normative Judgment
The second part of the Katz test, which requires the Court to examine whether society is prepared to recognize privacy expectations as reasonable, is determined by the Court as society’s representative in the realm of constitutional values.
C. Factors in Katz Analysis
1) Location, Location, Location
·         Most important.
·         Oliver v. United States: Narcotics agents, acting on reports that Oliver was growing marijuana arrived at his farm to investigate. The agents skirted a gate to investigate one of the barns on his property. There were no trespassing signs up on the land. In fact, the barn was partitioned off. The court said that open fields are not protected by the Fourth Amendment.
·         One cannot expect privacy expectations in an open field.
·         How do we distinguish between an open field and curtilage and house?
·         United States v. Dunn: DEA agents crossed into Dunn’s property, saw that in one of his barns he was growing marijuana. The Supreme Court said that since the marijuana was outside of the house; they gave 4 factors.
1) The barn was not proximate to the house, being 50 ya

in illegal or legal activities, and whether they are intimate or completely commercial.
·         U.S. v. Place: A sniff of luggage did not constitute a search.
·         Several states have interpreted their stats’ constitution so as to impose greater limitations on police actions. This is particularly true in the area of dog sniffs.
e) Vantage Point
·         The court has refused to recognize privacy in areas open to public observation. Moreover, it permits police to facilitate their observations from such public vantage points by using enhancement devices, so long as those devices simply enable police to see more clearly something that they could otherwise see without the devices.
·         The public vantage point factor can remove protection from an individuals’ innermost thoughts and feelings, even though atone tie the Court appeared to have special regard for repositories of private thoughts, such as “private papers.”
f) Reduced Expectations of Privacy
·         Privacy is reduced in school settings.
·         Prisoners also do not have reasonable expectations of privacy.
D. Subpoenas
A subpoena is considered neither a search nor a seizure. An unreasonably broad subpoena may implicate the 4th Amendment.
II. What is a “Seizure?”
·         In the case of a seizure of a person, the interest protected is in liberty: a seizure of a person occurs when a government actor significantly interferes with a person’s freedom of movement.
·         In the case of a seizure of a thing, the interest protected is a possessory one: a seizure of a thing occurs when the government works “some meaningful.
·         Has the government impeded your freedom of movement?
·         You also need probable cause for an arrest.
III. “Standing”, or Who May Complain About Searches & Seizures?
A. The Rakas Test
·         Generally courts encompass these issues within two broad inquiries: first, whether the proponent of a particular legal right has alleged injury in fact, and second, whether the proponent is asserting his own legal rights and interest rather than basing his claim for relief upon the rights of third parties.
·         Rakas v. Illinois: The defendants were stopped and searched by police officers investigating an armed robbery.The cops found a sawed off shotgun and artillery shells. Very important point: Whose car was it? They did not have complete dominion and control. Fourth Amendment rights are personal rights that may not be asserted vicariously. Did the person have a legitimate expectation of privacy in the invaded place?
·         The old rule before Rakas was that anyone legitimately on the premises was searched or seized. Rakas very much narrowed this test.