Select Page

Criminal Procedure
University of Dayton School of Law
Hoffmeister, Thaddeus

Chapter 1: Overview
Seven Interpretive Methods
Text of Constitution.
Intent of Framers.
Implicit Premises. (constitutional structure)
Evidence of American Traditions.
Evidence of Contemporary Morality.
Consideration of Practicality and Prudence.
Steps in the Criminal Process:
1)      Report of Crime
a)      Beginning of a case where someone reports a crime. In white collar cases this is where they suspect that a crime took place and so they begin their investigation and eventually bring their matter to the attention of a grand jury.
2)      Pre-Arrest Investigation
a)      To determine (1) whether a crime was committed, and (2) if so, who did it.
3)      Arrest
a)      May be with or without a warrant, depending on the circumstance. If with a warrant it must be supported by an affidavit establishing probable cause. Upon arrest, a defendant’s entire person is search and any weapons or contraband confiscated.
4)      Booking
5)      Preliminary Arraignment
a)      If non-violent, Diversion is sometime used. Tells them to stay out of trouble, and charges will be dropped.
b)      During the PA, this is when the Defendant is made aware of the charges brought against him.
6)      Continuing Investigation
a)      Lineups, DNA, witness interviews.
7)      Preliminary Hearing
a)      This is where the Judge must decide whether the case should continue, or whether it should be dismissed.
8)      Grand Jury Review
a)      In the common law, a grand jury is a type of jury that determines whether there is enough evidence for a trial. Grand juries carry out this duty by examining evidence presented to them by a prosecutor and issuing indictments, or by investigating alleged crimes and issuing presentments. A grand jury is traditionally larger than and distinguishable from a petit jury, which is used during a trial.
9)      Filing the Information or Indictment
a)      Information is the charging document if continued by Judge, Indictment is when by Grand Jury.
10) Arraignment on the Information or Indictment
a)      This is where they are again told of the charges brought against them and they are to enter a plea.
11) Pretrial Motions
12) Trial
13) Sentencing
14) Appeals
15) Post-conviction Remedies
Problem of Wrongful Convictions
1)      Wrongful Rights
A.     False confessions
1.      New empirical evidence suggests that standard police interrogation methods can lead the innocent to confess
B.     Misidentification
1.      Victim or someone else has stated w/fair amount of certainty the identity of criminal
2.      New empirical evidence suggests that tried-and-true methods for police lineup administration raise an unacceptable risk of misidentification; and
3.      Long-accepted “scientific” forensic methods for identifying the guilty – s/a fingerprint identification or handwriting analysis – are seriously flawed
Chapter 2: Searches & Seizures
I.        Introduction to the Fourth Amendment
1.      Courts view the 4th Amend as serving one primary function:
a.       Limiting the discretion of police and gov’t agents to violate liberty, privacy, and possessory rights
2.      Reasonableness is a product of balancing – the court weighs the state’s interest against the individual’s interest to determine whether a warrant is necessary, what level of suspicion is necessary, and whether the police have otherwise behaved properly
How to Approach Fourth Amendment Problems – Checklist 1 p.99: Is there a Fourth Amendment Claim?
1.      Does the Fourth Amendment Apply?
a.      Was there gov action?
                                                                                i.      Did the gov know of and acquiesce in the intrusive conduct?
                                                                              ii.      If so, was the private actor’s purpose to assist law enforcement efforts rather than to further his or her own ends?
                                                                            iii.      Generally YES! 
1.      BUT, it can get tricky if, for example, there is an undercover informant working for the gov’t. 
b.      Was there a search and seizure?
                                                                                i.      Was there a search – an invasion of a reasonable expectation of privacy?
                                                                              ii.      Was there a seizure of the person – gov action that reasonable person would believe limited his or her freedom of movement?
                                                                            iii.      Was there a seizure of a thing – an interference with a person’s possessory interests in property? 
2.      If the Fourth Amend applies, does the ∆ have standing to object to admitting the evidence?
a.       Did the search affect this ∆’s reasonable expectation of privacy, freedom of movement, or possessory interests?
b.      Did this ∆ have sufficient connections w/the American community to be considered a member of “the people” protected by the Fourth Amend
3.      If the Fourth Amend applies and the ∆ has standing, was the search or seizure reasonable?
a.       What level of justification – probable cause, reasonable suspicion, or something else – did the Fourth Amend require?
b.      Was the level of justification met? 
c.       Was a warrant required, or was there an applicable warrant exception? 
d.      If a warrant was required, was the warrant supported on oath by probable cause, issued by a neutral and detached magistrate, and detached magistrate, and sufficiently particular? [Supplemented by Checklist 3 p.219] e.       If the search or seizure was accompanied by a warrant, did the police execute the warrant reasonably? [Checklist 3 p.219]                                                                                 i.      Was there a search and seizure w/respect to the person who is trying to take advantage of the exclusionary rule
4.      If the Fourth Amend was violated, is the appropriate remedy exclusion of evidence?  [Supplemented by Checklist 7 p.524] a.       Does an exclusionary rule limitation apply?
                                                                                i.      Was the evidence discovered through an independent source?
                                                                              ii.      If not, was the evidence likely to have been inevitably discovered through an independent source?  
                                                                            iii.      If not, was the taint of the constitutional violation attenuated?
b.      Does the good faith exception apply – did the police reasonably rely on a warrant? [Supplemented by Checklist 8 p. 547]  
II.    What is a “Search” under the 4th Amendment?
The Katz Test Articulated
1.      Katz v. US
a.      Katz test – Two Part Test:
                                                                                i.      That a person have exhibited an actual (subjective) expectation of privacy, AND
                                                                              ii.      That the expectation be one that society is prepared to recognize as “reasonable”
b.      Katz had a reasonable expectation of privacy
Majority View v. Normative Judgment
1.      Majority view:
a.      To define reasonableness, the court would examine American view about privacy and tailor its definition to fit the attitudes of the majority or even of a sizeable minority.
2.      Normative approach:
a.      The court determines whether expectations of privacy are reasonable be referring to the values underlying the 4th

ivate residence, a location not open to visual surveillance; SC held no violation of 4th Amend rights b/c of no reasonable expectation of privacy in the can while it belonged to the DEA
f.        Thermal Imaging Devices: Kyllo says no, supplement says yes.
                                                                                i.      Kyllo v. US – Use of thermal imaging devise to determine that Kyllo was growing marijuana in his house; Court is trying to deal w/future technology issues; Test – is the devise in general public use?; Held – obtaining by sense-enhancing technology any info regarding the interior of a home that could not otherwise have been obtained w/o physical intrusion constitutes a search, at least where the technology in question is not in general public use; The majority rule assures preservation of that degree of privacy against gov’t that existed when the 4th Amend was adopted.
g.      Aerial Surveillance: Not a search since members of the public could fly over and observe.
                                                                                i.      CA v. Ciraolo – Police used a private plane to fly over yard and saw marijuana plants growing; ∆ had no reasonable expectation of privacy against the airborne observations; Plane used by police was of a type used by the general public
                                                                              ii.      Dow Chemical Co v. US – EPA used a sophisticated aerial mapping camera to take photos of facilities from very high altitudes; Expectations of privacy are reduced when the property is commercial rather than residential; While there might be protection from highly sophisticated surveillance equipment penetrating walls and window, there was no such protection from lawful surveys from the air that did not reveal intimate domestic affairs
h.      Container Searches: Trash = no search.
                                                                                i.      CA v. Greenwood – Whether Greenwood had a reasonable expectation of privacy in bagged garbage once outside the home and the cartilage; Held – no; Court found it irrelevant that the CA constitution, as interpreted by that state’s highest court, prohibited warrantless searches and seizures of garbage, stating that the 4th Amend doesn’t turn on the varying law of the states
                                                                              ii.      Bond v. US – A border patrol agent did violate reasonable expectations of privacy when he squeezed soft luggage of a passenger on a bus; Physical invasive inspection is simply more intrusive than purely visual inspection; Whether the individual, by his conduct by being on the bus, exhibited an actual expectation of privacy? It was an intrusion of expectation of privacy. May not take much extra effort on behalf of the police for the court to determine that it is a search.
3.      Other Factors in the Search Analysis
a.      Property Interests
                                                                                i.      Usually not dispositive