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Criminal Procedure
University of Denver School of Law
Farrell, Ian P.

Criminal Procedure Outline

Wednesday, November 20, 2013

2:32 PM


o 1891

· SCOTUS given broad appellate jxd over criminal cases

· Creates at least one avenue for adjudication of criminal procedure questions

· Not long after SCOTUS began to rule that 14th Amendment’s Due Process Clause made provisions in the Bill of Rights enforceable against state and local governments.

o 1920 – 1933 Prohibition

· Beginning of large amount of Federal Criminal Procedure due to bureaucracy of enforcing the National Prohibition Act

o 1953 – 1969 Selective Incorporation

· Warren Court applied most of clauses in the first 8 Amendments


o The Reasonableness Clause

o Persons, Houses, Papers, and Effects

o 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.

o Reasonableness Clause

o Warrant Clause

o Two Theories of Interpretation to the 2 clauses

· Warrant Preference Theory

a. Warrant Clause modifies Reasonable Clause

b. Searches are generally unreasonable unless authorized in advance by a warrant

c. Warrantless searches are permitted only in “well defined exceptions” (Katz)

1. “exigent circumstances”

2. “special needs” make it impossible/impracticable to obtain a warrant in advance

1. Only time balancing test is used

· Destruction of Evidence

· Danger to life or limb

d. Warrants must be supported by probable cause and describe what is to be searched or seized

· Reasonableness Theory

a. Reasonableness Clause is independent of Warrant Clause

b. 4th requires at least all searches/seizures be reasonable

c. Some searches are reasonable w/o probable cause

1. “Reasonable” depends on circumstances

1. Privacy interests v. government objectives

d. Every Search is evaluated on Balancing Test ^

Olmstead v. United States (1928)

Agents intercepted messages relayed by telephone. Small wires were inserted along the ordinary telephone wires from the residences of four of the [suspects] and those leading from the chief office. The insertions were made without trespass upon any property of the defendants.

§ ISSUE: Wire-tapping a violation of 4th?

§ RULE: Exclusion of evidence should be confined to cases where rights under the constitution would be violated by admitting it.

§ HELD: NO Search.

A search must contain a physical intrusion of a person, house, paper, ect. (partly discredited)

Transmitting was outside the home.

Transmitting was intangible (only what was heard).

4th protects property.

Mere violations of law do not automatically trigger exclusionary rule

Separation of Powers: Congress may make telephone messages inadmissible – but court cannot

§ DISSENT: (Holmes)

Government ought not to use evidence obtained by criminal act.

It is a “less evil that some criminals should escape than that the government should play an ignoble part.”

§ DISSENT: (Brandeis)

Immaterial where the physical connection with the telephone wires was made.

Katz v. United States (1967)

Govt. phone tapped outside of a phone booth to obtain illegal transmitting of wagering information.

§ ISSUE: 4th protects conversations tapped from outside phone booth?

§ RULE: 4th protect the person, not the place (shift from property to privacy interest)


4th prohibits unreasonable violations to reasonable expectations of privacy

Physical intrusion NOT necessary, only a violation of a reasonable expectation of privacy

· Interprets “Persons, houses, ect.” = all things that people have a ‘right’ to privacy

Just because he could be seen does not mean he gave up his expectation of privacy to not be heard.

Govt. may not rely on police discretion (voluntarily

f conversations between individual and govt. agent does not violate 4th

§ HELD: NO Search

· 4th provides no protection to a wrongdoer’s misplaced belief that a peon to whom he voluntarily confides his wrongdoing will not reveal it (Hoffa)

· No warrant is required when govt. sends to Δ’s home a secret informant and makes a purchase of narcotics from the accused (Lewis)

· Carrying electronic equipment to record Δ’s words and the evidence is later offered no warrant required (Lopez)

· Equipment that transmits to an off-site recording location or to other agents monitoring the frequency no warrant is required (On Lee)

· Case was judged on pre-Katz law b/c events took place in 1965-66, but found support in On Lee.

United States v. Miller (1976)

In investigating Miller for carrying distilling equipment and un-taxed whiskey, govt. issued subpoenas to two of Miller’s banks to produce all records and accounts in Δ’s name. The banks complied without advising Δ.

§ ISSUE: 4th allow the seizure of bank records?

§ RULE: No right to privacy in bank records.

§ HELD: NO Search

· Bank documents are NOT private papers

· Bank documents are business records of the bank

· Relied on Hoffa

· Reasonable Expectation of Privacy Standard

· AKA REP that society deems worth protecting

· REP standard is self-fulfilling (police start seizing bank records, people will know that they have no REP in them)

· Likewise, checks are not private papers, but negotiable instruments

· Third Party ‘Exclusion’ – (Hoffa, Lopez, White) Once you give info to 3rd party (no longer a secret) you no longer have a REP and thus no 4th protections